Opinion
No. 2-1003 / 02-0581
Filed July 23, 2003.
Appeal from the Iowa District Court for Polk County, George Bergeson, Judge.
An employer and its workers' compensation insurer appeal a district court judicial review ruling affirming an award of workers' compensation benefits. AFFIRMED.
Peter Thill of Betty, Neuman McMahon, L.L.P., Davenport, for appellant.
Paul McAndrew, Jr. and Eric Fisher of Paul McAndrew Law Firm, Coralville, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Petitioners, H.J. Heinz and Liberty Mutual Insurance Company ("Heinz" collectively), appeal a district court judicial review ruling affirming an award of permanent partial disability benefits to the respondent Ruth M. Alcorta. Heinz contends the district court erred in finding (1) there is substantial evidence in the record to support the agency's determination Ruth's shoulder and neck injury arose out of and in the course of her employment, (2) at the time of hearing Ruth's bilateral shoulder condition had progressed to the point the injuries were compensable under Iowa Code chapter 85 (1999), and (3) there is substantial evidence in the record to support the agency's finding of a thirty-five percent industrial disability. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Ruth Alcorta has worked for H.J. Heinz for approximately thirty-two years. Dating from the mid-1980's Ruth has had extensive medical problems with her hands and wrists caused by the repetitive actions required by her work at Heinz. These injuries to her hands and wrists eventually led Ruth to file a workers' compensation claim in 1996. She entered into a settlement agreement with Heinz on the claim but the settlement did not include consideration of any injury to her shoulders or neck.
The present claim is based on a second workers' compensation claim filed by Ruth in December 1998 in which she sought healing period benefits, permanent total disability, and payment of medical expenses for alleged work-related injuries to both of her shoulders, her collarbone-sternum joint, and neck. She alleged in her petition an injury date of March 28, 1997 for her upper extremity injuries. Hearing was held before a deputy commissioner on July 14, 2000.
This claim was brought in conjunction with two other claims, one a review-reopening claim and the other alleging work-related injuries to Ruth's left knee and right ankle. Neither party has appealed the agency's decisions regarding these other claims.
Ruth testified before the agency that her shoulder problems began in 1994 but she did not complain about the problem to anyone at Heinz until late 1995. In March 1997 Ruth was transferred to her present position of pouch inspector. Ruth testified that the pouch inspector job requires several activities which aggravate her shoulder condition and these problems had worsened from the time of the settlement in 1996 to the time of the current action.
Several doctors have examined Ruth and given their opinions regarding the severity and cause of her upper extremity problems. They include Drs. Miller, Blair, Hines, Mendel and Hart. The following opinions, among others, were submitted to and considered by the deputy commissioner at hearing.
Dr. Miller was the first to note a problem with Ruth's right shoulder in February 1996. He found that she had mild rotator cuff tendonitis in her right shoulder.
Dr. Blair saw Ruth in June 1996. At that time he diagnosed her with cumulative trauma disorder of her upper extremities with mild right rotator cuff tendonitis, and stated that "[b]ased upon her history, I would define the cumulative trauma disorder as causally related to her work related activities." An MRI of Ruth's right shoulder in October of 1998 showed no degenerative changes of any type. In a July 1999 letter to Ruth's attorney Dr. Blair opined that Ruth's "right rotator cuff tendonitis represents a degenerative process and that there was no specific injury nor other work exposures at Heinz that substantially caused her right rotator cuff tendonitis," that her "work-related activities at Heinz did not cause or `bring about' the right rotator cuff tendonitis," and that although "some of her work activities intermittently and temporarily aggravated her symptoms . . . her work activities did not substantially aggravate her pre-existing rotator cuff tendonitis."
Dr. Hines evaluated Ruth on May 17, 1999, and found her to have volar tendonitis bilaterally with a ganglion cyst on the left, bilateral Dequervain's Syndrome, right lateral epicondylitis, left sternoclavicular joint dysfunction, and bilateral glenohumeral and acromioclavicular joint dysfunction. He rated Ruth's whole person impairment at forty-five percent. In April 2000 Dr. Hines opined that Ruth's thirty-one years of service at Heinz has led to repetitive use syndrome in the hands, wrists, and shoulders.
In December 1999 Dr. Mendel stated that "it is most likely that [Ruth's] 31 years of employment at Heinz has substantially aggravated her discomfort including her neck, shoulders and leg."
Finally, Dr. Hart also examined Ruth in December 1999 and concluded she had bilateral rotator cuff tendonitis and her work at Heinz at least had aggravated her shoulder condition, if not been the primary cause of it.
The deputy issued his arbitration decision on January 22, 2001, finding that Ruth sustained a bilateral shoulder condition arising out of and in the course of her employment at Heinz. He found the assessments of Drs. Mendel, Hart and Hines to be correct with regard to Ruth's employment causing her bilateral shoulder condition and rejected Dr. Blair's opinion that Ruth's condition was the result of a degenerative process, finding it "is inconsistent with the opinions of several other physicians, lacks logic, and is inconsistent with the results of the MRI." The deputy also rejected Dr. Blair's assessment because he characterized her shoulder problems as a temporary aggravation, whereas the problems had been ongoing for about four years.
Neverthless, the deputy determined that Ruth's cumulative trauma injury to her shoulders had "not yet progressed to the point that the disability is manifested by having an adverse impact on her employment and her petition seeking benefits for her shoulders is premature." He found the most likely potential date of injury for Ruth's shoulders would be her last day of employment with Heinz. The deputy did order Heinz to pay for ongoing medical care with regard to Ruth's shoulders.
In the intra-agency appeal decision dated September 27, 2001 the chief deputy adopted and affirmed most of the deputy's arbitration decision. However, the chief deputy disagreed with the determination that the injury had not manifested itself to the point it was compensable under Iowa Code chapter 85. The chief deputy found,
In an order dated September 24, 2001 the workers' compensation commissioner delegated authority to a chief deputy commissioner to issue the final agency decision in this matter pursuant to Iowa Code § 86.3.
In this case, claimant clearly is on notice that she has suffered a work injury, that her condition is causally connected to her work, that the condition is permanent, and that the injury has an impact on her employment. She has significant permanent restrictions that have already made her ineligible for several positions with the employer. Her cumulative injury has manifested and is ripe for compensation.
. . .
Thus, as of May 17, 1999, the date of Dr. Hines' report, claimant knew she had suffered an injury, she knew that it was caused by her work activity, she knew that it was permanent, and she knew that is would have an impact on her employability. May 17, 1999, is found to be the date of injury for claimant's cumulative injury.
The chief deputy also found Ruth to have an industrial disability of thirty-five percent as a result of her cumulative work-related injury to and impairment of her shoulders and that her permanent partial disability benefits should commence May 17, 1999.
Heinz filed a petition for judicial review with the district court and the court summarily affirmed the final agency decision. Heinz appeals from the district court's affirmance of the appeal decision granting Ruth permanent partial disability benefits of thirty-five percent.
II. SCOPE AND STANDARDS OF REVIEW
Our review of a final decision of the workers' compensation commissioner, like that of the district court, is for correction of errors of law. Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). In determining whether the district court erred in exercising its power of judicial review, we apply the standards of Iowa Code section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court. Williamson v. Wellman Fansteel, 595 N.W.2d 803, 806 (Iowa 1999); E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 829 (Iowa 1994). The agency's findings are akin to a jury verdict, and we broadly apply them to uphold the agency decision. Shank, 516 N.W.2d at 812.
As part of 1998 amendments to chapter 17A what had been section 17A.19(8) was stricken and in amended form became section 17A.19(10). See 1998 Acts ch. 1202, § 24 (codified at Iowa Code § 17A.19(8-12) (2001, 2003)). Accordingly we in fact apply the standards of Iowa Code § 17A.19(10) (2001, 2003), as the agency action under review occurred after the revised statute took effect on July 1, 1999. See Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003) (holding the district court correctly applied the amended statutory language on judicial review where the agency action did not occur until after the revised statute took effect on July 1, 1999).
We will uphold the agency's action against a claim it is unsupported by substantial evidence in the record made before the agency when the record is viewed as a whole, if a reasonable person could accept the evidence as adequate to reach the findings made by the agency. Pointer v. Iowa Dep't of Transp., 546 N.W.2d 623, 625 (Iowa 1996).
[E]vidence is not insubstantial merely because it would have supported contrary inferences. Nor is evidence insubstantial because of the possibility of drawing two inconsistent conclusions from it. The ultimate question is not whether the evidence supports a different finding but whether the evidence supports the findings actually made.
City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 536 (Iowa 1996). Therefore, if the agency's findings of fact are supported by substantial evidence, those findings are binding on us. Id. The agency 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. Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992).
III. MERITS
On appeal Heinz argues the district court erred in finding (1) there is substantial evidence to support the agency's determination Ruth had proven her shoulder and neck injury arose out of and in the course of her employment, (2) at the time of hearing Ruth's bilateral shoulder condition had progressed to the point the injuries were compensable under Iowa Code chapter 85, and (3) there is substantial evidence in the record to support the agency's finding of a thirty-five percent industrial disability. We address these issues separately.
A. Causal Connection
A claimant seeking workers' compensation benefits has the burden of proving by a preponderance of the evidence that the disability on which he or she bases a claim arose out of and in the course of the claimant's employment. St. Luke's Hosp. V. Gray, 604 N.W.2d 646, 652 (Iowa 2000); Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996). The question of causal connection is essentially within the domain of expert testimony. Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995); Collentine, 525 N.W.2d at 830. The commissioner is free to accept or reject, in whole or in part, expert testimony even if uncontroverted. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974) ; Prewitt v. Firestone Tire Rubber Co., 564 N.W.2d 852, 855 (Iowa Ct.App. 1997). In the context of expert opinion concerning causal connection of an injury with employment, our supreme court has stated:
The weight to be given such an opinion is for the finder of fact, in this case the commissioner, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances.
When the expert's opinion is based upon an incomplete history, the opinion is not necessarily binding upon the commissioner. The commissioner as trier of fact has the duty to determine the credibility of the witnesses and to weigh the evidence, together with the other disclosed facts and circumstances, and then to accept or reject the opinion.Dunlavey, 526 N.W.2d at 853 (citations omitted).
It is clear from the record here that the expert testimony regarding causation was controverted. However, it is equally clear the evidence was before the agency and given full consideration by it. As set forth in detail above, the chief deputy found the opinions of Drs. Mendel, Hart, and Hines, that Ruth's injury to and impairment of her shoulders was caused by her employment at Heinz, to be correct and rejected Dr. Blair's contrary opinion, finding it lacked logic and was inconsistent with the opinions of several other physicians as well as the results of the MRI.
We find, when the record is viewed as a whole, there is substantial evidence to support the chief deputy's rejection of Dr. Blair's opinion and his reliance on the opinions of Drs. Mendel, Hart, and Hines in making his determination regarding causation. A reasonable mind could find the evidence adequate to reach the same conclusion as the agency. The decision does not lack substantial evidential support merely because inconsistent conclusions could be drawn from the evidence. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). The ultimate question is not whether the evidence would support a different finding, but whether it supports the finding the commissioner actually made. Id.
Based on our review of the evidence in the record as a whole, we agree with the conclusion of the district court that substantial evidence in the record supports the agency's determination that Ruth's bilateral cumulative shoulder injury arose out of and in the course of her employment at Heinz.
B. Compensability of Cumulative Injury
Heinz next contends the district court erred in affirming the agency's determination that Ruth's bilateral shoulder condition had manifested itself as of May 17, 1999 to the point it was compensable under Iowa Code chapter 85. Specifically, Heinz argues the injury had not manifested itself as of that date, or at any time prior to the hearing before the agency, because there is no evidence in the record that Ruth's shoulder and neck problems have had an adverse impact on her employment or employability.
Our supreme court adopted the "cumulative injury rule" in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In Oscar Mayer Foods v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992), the 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. It held that an injury manifests itself when both (1) the fact of the injury and (2) the causal relationship of the injury to the claimant's employment would have become plainly apparent to a reasonable person. Id. In a later case, dealing with a statute of limitations issue, the court stated:
To summarize, 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. Upon the occurrence of these two circumstances, the injury is deemed to have occurred.Herrera v. IBP, Inc., 633 N.W.2d 284, 288 (Iowa 2001).
Our supreme court has specifically declined to add a third element of either compensability or the receipt of a permanency rating as a prerequisite for meeting the manifestation test. Id. at 287; George A. Hormel Co. v. Jordan, 569 N.W.2d 148, 152 (Iowa 1997). Although the cumulative injury/manifestation rule and the discovery rule (which includes the issue of the impact of an injury on the claimant's employment or employability) are related, they are separate and distinct questions. Herrera, 633 N.W.2d at 287-88; McKeever, 379 N.W.2d at 372-73.
The chief deputy concluded that May 17, 1999, the date of Dr. Hines's evaluation, was the date of injury for Ruth's cumulative bilateral shoulder injuries. In discussing whether Ruth's bilateral shoulder injuries had by that date manifested themselves to the point of being compensable, the chief deputy stated
There is no requirement that claimant's disability be "ripe" in the sense that she must have suffered actual loss of employment or even a re-assignment as a result of her injury. Perhaps confusion arises over the term "have an impact on employment" used by the court in Venenga[ v. John Deere Component Works, 498 N.W.2d 422 (Iowa Ct.App. 1993)]. That phrase is not read by the undersigned to be limited to an impact on a claimant's present employment, but rather it refers to an impact on a claimant's employability. The former would only occur when a claimant actually stopped working for the present employer or was moved to a lesser paying position; the latter occurs when a claimant's cumulative injury manifests itself, that is, when a claimant realizes the injury, knows it is caused by work, and knows it will have an impact on his employability because the injury is permanent. Tasler, Venenga, [ George A. Hormel Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997)]. When those events occur, the injured worker's cumulative injury has manifested; it has caused him disability now, not at some undetermined point in the future.
In this case, claimant clearly is on notice that she has suffered a work injury, that her condition is causally related to her work, that the condition is permanent, and that the injury has an impact on her employment. She has significant permanent restrictions that have already made her ineligible for several positions with the employer. Her cumulative injury has manifested and it is ripe for compensation.
We believe that circumstances under which an injury has impacted a claimant's present employment are not necessarily limited to those listed by the chief deputy (when a claimant actually stops working for the present employer or is moved to a lesser paying position). Other circumstances might include, for example, an injury which renders an employee ineligible for a higher paying position or ineligible for a promotion. We otherwise agree with the essence of the chief deputy's analysis.
On May 17, 1999 Dr. Hines concluded that Ruth's bilateral shoulder condition was caused by her employment, an opinion in which Drs. Mendel and Hart concurred in December 1999. By May 17, 1999 Ruth's physicians had imposed permanent work restrictions for bilateral shoulder injuries. The shoulder injuries are work-related. The work restrictions make Ruth ineligible for several positions with Heinz, including higher-paying positions. Her injuries therefore had an impact on her employment and employability.
As of May 17, 1999 Ruth was aware that (1) she suffered from a cumulative injury to her shoulders, and (2) the condition or injury to her shoulders was caused by her employment. Although these are the only two elements necessary for a cumulative injury to have manifested itself, see Herrera, 633 N.W.2d at 288, Tasler, 483 N.W.2d at 829, and to thus be compensable, the evidence also clearly shows that, as found by the chief deputy, the injury had impacted Ruth's employment and employability. We therefore conclude the record contains substantial evidence supporting the agency's conclusion that as of May 17, 1999 Ruth's bilateral cumulative shoulder injuries had manifested themselves to the point they were compensable.
C. Thirty-five Percent Industrial Disability Award
As noted above, the agency found Ruth had sustained a thirty-five percent industrial disability. Heinz argues this award is not supported by substantial evidence in the record because there is no evidence to show Ruth's alleged shoulder condition resulted in any new work restrictions, lost time from work, the elimination of any job opportunities at Heinz, or other factors establishing a loss of earning capacity.
Industrial disability is a concept used to measure an unscheduled disability under Iowa Code section 85.34(2)(u). A claimant's industrial disability is measured by the claimant's lost earning capacity. Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 14 (Iowa 1993). Factors that should be considered include the claimant's functional disability, age, education, qualifications, experience, and ability to engage in employment for which the claimant is fitted. Shank, 516 N.W.2d at 813. "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 1995). It is necessary for the commissioner to draw upon experience and general and specialized knowledge to make a finding in regard to the degree of industrial disability. Lithcote Co. v. Ballenger, 471 N.W.2d 64, 68 (Iowa Ct.App. 1991).
Here, the agency pointed to a variety of factors that informed its judgment on Ruth's industrial disability award. Those factors include her age of fifty-three, the fact Ruth's work experience is limited to food processing assembly line work, her work restrictions, her significant impairment ratings, and her high school education. The chief deputy considered the appropriate factors and came to a reasoned conclusion supported by substantial evidence in the record. We therefore affirm the award of industrial disability benefits.
IV. CONCLUSION
We agree with the conclusions of the district court and find that the agency's decision should be affirmed.