Opinion
No. 5-405 / 04-2085
Filed June 15, 2005
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.
An employer and its workers' compensation insurer appeal from a district court ruling upholding a decision of the workers' compensation commissioner awarding an employee permanent partial disability benefits. AFFIRMED.
Peter Sand of Gislason Hunter, L.L.P., Des Moines, for appellant.
Jerry Jackson of Moranville Jackson, West Des Moines, for appellee.
Considered by Mahan, P.J., and Zimmer and Hecht, JJ.
Wilian Holding Construction Products (Wilian) appeals from the district court's ruling on its petition for judicial review. The court affirmed a decision of the workers' compensation commissioner awarding Wilian's employee, Don Rice, healing period and permanent partial disability benefits. Wilian asserts there was not substantial evidence to support the agency's determinations that (1) Rice's May 2001 work-related injury proximately caused a disk herniation which was treated surgically in February 2002, and (2) Rice suffered a fifteen percent industrial disability as a result of the herniated disk. Upon our review for the correction of errors at law, Iowa R. App. P. 6.4, we affirm the district court.
We use Wilian to refer to both the company and its workers' compensation insurer, St. Paul/Travelers Insurance Company.
Our resolution of this case is driven by our limited standard of review. We must uphold factual determinations vested in the discretion of the agency if they are supported by substantial evidence. Iowa Code § 17A.19(10)(f) (2003). Substantial evidence is that quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the facts at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance. Id. Webroadly 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). In light of these standards, we conclude the district court's ruling must be affirmed.
It is undisputed that Rice suffered a work-related injury in May 2001. A Magnetic Resonance Imaging study performed on February 28, 2002 revealed Rice had a herniated disk. Dr. Daniel McGuire, a physician who treated Rice's herniated disk, opined Rice's work either caused the herniation or aggravated a preexisting condition. The deputy and the agencyrelied on this opinion in finding that the 2001 injury proximately caused the herniation and Rice's resulting industrial disability. See Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980) (noting a cause is proximate if it is a substantial contributing factor). Since medical causation is essentially within the domain of expert testimony, Dunlavey v. Economy Fire Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995), and given the agency's role in weighing evidence and assessing credibility, Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998), Dr. McGuire's opinion does provide substantial evidence to support the agency's determination.
Wilian asserts Dr. McGuire's August 2003 written opinion indicating Rice's low back impairment is work related was later repudiated during the doctor's October 2003 deposition. Dr. McGuire was asked during the deposition to review medical records, including those of other physicians who treated Rice for the May 2001 injury. Those records indicated Rice's symptoms from the May injury had improved substantially by the end of May 2001, and that Rice did not again report back pain symptoms to a physician until September 2001. When asked to reconsider his opinion in light of these medical records, Dr. McGuire testified it was "difficult to make a decision within a reasonable degree of medical certainty" as to whether Rice's back problems were work related.
However, when Rice's attorney asked Dr. McGuire during cross-examination to assume both that Rice had in fact continued to suffer "waxing and waning" symptoms between May and September of 2001, and that he did not seek medical attention until September because Wilian's safety director "put him off until he finally went to his own doctor," Dr. McGuire effectively endorsed his prior written opinion affirming the existence of a causal connection between the May 2, 2001 work-related incident and Rice's lumbar disk defect. A reasonable fact-finder could find Dr. McGuire's deposition testimony did not, as Wilian suggests, repudiate his earlier opinion. Rather, a neutral, detached, and reasonable person could, as the agency did, determine Dr. McGuire's causation opinion turned on whether Rice was or was not symptomatic between May and September 2001.
During the arbitration hearing Rice testified, in line with the hypothetical posed by his counsel during Dr. McGuire's deposition, that he (1) felt very good at the end of May, but shortly thereafter his lumbar symptoms worsened; (2) continued to experience symptoms, on and off, throughout the summer of 2001; and (3) reported the problem to Wilian's safety director, but the director did not offer to refer him to an authorized treating physician until September of 2001. Wilian did not refute this testimony.
The agency found Rice continued to be symptomatic following his May 2001 injury, and thus accepted the opinion of Dr. McGuire that the May 2001 injury caused the lumbar disk herniation and resulting industrial disability. Such fact-finding is vested in the discretion of the agency, not the courts. Sherman, 576 N.W.2d at 321; Dunlavey, 526 N.W.2d at 853. The agency's resolution of the causation issue was supported by substantial evidence, and properly affirmed by the district court.
We therefore turn to the question of industrial disability, which is measured by the extent to which the injury reduced Rice's earning capacity. Acuity Ins. v. Foreman, 684 N.W.2d 212, 219 (Iowa 2004). Industrial disability assessments require consideration of many factors, including the extent of a claimant's functional impairment, age, education, experience, and "inability, because of the injury, to engage in employment for which [the employee] is fitted." Id. (citation omitted). In evaluating the evidence relevant to the industrial disability determination, the agency may rely on its "experience, technical competence, and specialized knowledge. . . ." Iowa Code § 17A.14(5).
Looking to the relevant factors, we note that Rice, fifty-two years old at the time of the hearing, has a high school education. He held a variety of labor, office, and repair positions, and performed general maintenance while at Wilian. Rice performs similar maintenance duties for his current employer, Diamond Crystal. Since his surgery Rice has been capable of performing his job duties, both at Wilian and at Diamond Crystal. Although there is no evidence that Rice's injury resulted in an actual reduction in income, a finding of industrial disability does not depend on a loss of earnings. Indeed, our courts have long held proof of a loss of employment and a loss of actual earnings is not essential to a finding of industrial disability. See Arrow-Acme Corp. v. Bellamy, 500 N.W.2d 92, 94 (Iowa Ct.App. 1993) (noting the primary consideration in determining industrial disability is loss of earning capacity, not loss of actual earnings such that there existed no inconsistency in the commissioner's determination that claimant suffered a reduction in earning capacity despite a showing he was presently earning a higher wage).
Rice and about sixty other employees were laid off from Wilian in November 2002 due to an economic slowdown. Four months later Rice obtained a maintenance position at Diamond Crystal.
The record does support the agency's finding that Rice suffered a ten-percent whole body impairment as a result of the work-related injury and the resulting surgically-treated disk herniation. Rice testified Dr. McGuire advised him to avoid lifting more than thirty to forty pounds. Although the doctor conceded his records did not confirm the imposition of such a restriction, a reasonable person could find on this record that the absence of a formal lifting restriction should be attributed not to Rice's post-surgery physical capacity, but instead to his desire to return to work, his perceived need to do so without physical restrictions, and Dr. McGuire's willingness to forego imposition of a lifting restriction in furtherance of Rice's return to work. Thus, the agency`s finding that Rice has a lifting restriction as a consequence of his work-related injury is supported by substantial evidence, and we reject Wilian's claim to the contrary.
Rice's age, education, work experience, physical impairment rating, and post-surgery physical restrictions, when taken together, constitute substantial evidence supporting the agency's finding of industrial disability. Accordingly, we affirm the agency's determination that Rice suffered a fifteen-percent industrial disability as a consequence of the work-related injury of May 2, 2001.
AFFIRMED.
Mahan, P.J., and Hecht, J., concurs; Zimmer, J., dissents in part.
I concur in the majority's conclusion that there is substantial evidence to support the agency's proximate cause determination. I respectfully disagree with the majority's conclusion that the agency's industrial disability award was also supported by substantial evidence.
I agree there was substantial evidence that Rice suffered a ten-percent whole body impairment. However, upon review of the record made before the agency, I do not detect proof of additional relevant facts which, in conjunction with the impairment rating, would provide substantial evidence to support a conclusion that Rice's earning capacity has been negatively impacted.
There is no evidence Rice's age, education, or experience have limited his ability to maintain suitable employment, and he is in fact currently employed in a position substantially similar to the position he held at Wilian. Moreover, as the majority acknowledges, there is no evidence Rice's injury resulted in an actual reduction in income or in any way impairs him from performing his job duties. In addition, I do not believe there is substantial evidence to support a finding that Rice's injury resulted in a thirty to forty pound lifting restriction.
Although Rice testified that Dr. McGuire "suggested" he observe a thirty to forty pound lifting restriction, Rice admitted, and Dr. McGuire confirmed, that Rice was released to return to work without any restrictions. Moreover, Dr. McGuire never stated that lifting restrictions would have or should have been imposed. In my estimation, even if the evidence is viewed liberally, it is simply insufficient to allow a reasonable fact finder to conclude that Rice had a thirty to forty pound lifting restriction. Absent such proof, I do not believe there is substantial evidence to support the agency's industrial disability award. Accordingly, I would reverse the agency's award of permanent partial disability benefits.
In response to a letter from Rice's attorney, which asserted that Dr. McGuire had imposed a thirty to forty pound restriction and inquired whether the restriction was permanent, Dr. McGuire declined to opine that Rice had a permanent restriction. Rather, Dr. McGuire stated that such a restriction was reasonable, but that he had never been provided Rice's job description. In addition, when asked about restrictions during his deposition, Dr. McGuire testified only that "[i]n an ideal world" it "[m]ight have been nice to place a few absolute restrictions. . . ."