Opinion
No. 4-662 / 03-1863
Filed January 26, 2005
Appeal from the Iowa District Court for Polk County, Sherman W. Phipps, Judge.
An employee appeals and an employer cross-appeals from a district court judicial review decision that affirmed in part, reversed in part, and remanded a decision of the workers' compensation commissioner. DISTRICT COURT DECISION AFFIRMED IN PART ON APPEAL AND REVERSED IN PART ON CROSS-APPEAL; AGENCY DECISION AFFIRMED.
Steven Jayne, Des Moines, for appellant.
Sean Moore and James Gilliam of Brown, Winick, Graves, Gross, Baskerville Schoenebaum, P.L.C., Des Moines, for appellee.
Heard by Huitink, P.J., and Mahan and Miller and Vaitheswaran, JJ., and Snell, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Claimant Patricia Bolinger appeals, and employer Coastal Mart, Inc. (Coastal Mart) cross-appeals, from a district court decision on Bolinger's petition for judicial review. The district court affirmed the workers' compensation commissioner's denial of two claims based on specific injury dates, but reversed the agency's denial of Bolinger's cumulative injury claim. Upon review we conclude the agency decision should be affirmed in total.
Although the cross-appeal is also brought by Coastal Mart's workers' compensation insurer, Reliance National Indemnity, for ease of reference we will refer only to Coastal Mart as the appellee and cross-appellant.
I. Background Facts and Proceedings.
Bolinger began working for Coastal Mart in 1989, and was soon promoted to a supervisory position. In 1992 she injured her back while lifting merchandise at work. An MRI revealed that Bolinger suffered from degenerative joint disease of the lumbosacral spine. Bolinger's pain and other symptoms following the 1992 injury resolved with non-surgical treatment.
On April 25, 1994, Bolinger again injured herself while lifting merchandise at work. Bolinger underwent conservative, non-surgical treatment which improved, but never totally resolved, her symptoms. Throughout 1994 and 1995 Bolinger continued to report low back and radiating leg pain. In January 1996 Dr. Donna Bahls, the physical medicine and rehabilitation specialist treating Bolinger, opined that Bolinger had reached maximum medical improvement. Dr. Bahls further assigned a five percent impairment rating for Bolinger's "injury related to April 25, 1994." The rating was based on lumbosacral strain and aggravation of Bolinger's degenerative joint disease. Coastal Mart voluntarily paid Bolinger permanent partial disability benefits corresponding to the five percent impairment rating.
In early February 1996 Bolinger experienced worsening symptoms. Bolinger claimed she suffered a work-related injury the weekend of February 10-11, 1996, and ultimately filed a claim for temporary and permanent disability benefits stemming from that alleged injury. A few days later, on February 15, Bolinger was involved in an automobile accident. In light of the accident, Coastal Mart ceased payment for Bolinger's medical care.
Bolinger continued to experience back and leg pain, and sought treatment under her medical insurance plan. In July 1996 Bolinger self-referred to Dr. Daniel McGuire, an orthopaedic surgeon. She underwent two surgical procedures in September 1996. Although Bolinger's symptoms significantly improved following surgery, she did continue to experience some leg pain.
On January 25, 1997, Bolinger suffered another work-related injury, this time a slip and fall. Bolinger underwent another surgery in February 1997. The surgery appeared to afford Bolinger some relief, but she continued to experience symptoms and flare ups until she resigned from Coastal Mart on March 17, 1998. The separation notice listed "working too many hours" as the reason for the resignation. Bolinger claimed she quit because not enough employees were being provided to cover shifts, and she was physically unable to do her job. Bolinger's final day at work was March 23, 1998.
Bolinger's claim for workers' compensation benefits stemming from the alleged February 1996 injury came on for hearing in July 1998. In the August 1998 arbitration decision, the deputy workers' compensation commissioner concluded Bolinger had sustained a work-related injury on February 10, 1996, but that Bolinger had failed to prove the injury was a proximate cause of any temporary or permanent disability she was currently suffering. Bolinger did not appeal this decision.
A little more than two months later, in November 1998, Bolinger filed the three petitions at issue in this matter, asserting the April 1994 and January 1997 injuries caused a compensable disability, and that she suffered a compensable cumulative injury with an injury date of March 24, 1998. The cases were consolidated. Following hearing, the deputy commissioner determined all three claims were barred by res judicata, as Bolinger had previously and unsuccessfully sought workers' compensation benefits, contending the same alleged disability was the result of the February 1996 work injury. On appeal the agency concluded the claims were not barred, and proceeded to the merits. It denied all three claims, determining Bolinger had failed to establish either that (1) she suffered a cumulative injury with an injury date of March 24, 1998, or (2) the stipulated work-related injuries occurring on April 25, 1994, and January 25, 1997, had proximately caused temporary or permanent disability.
Upon judicial review, the district court affirmed the agency decision regarding the 1994 and 1997 injuries, but remanded the issue of cumulative injury for reconsideration. The court concluded the agency applied the wrong legal standard in assessing whether a cumulative injury had occurred. On appeal, Bolinger asserts the agency's determination regarding the 1994 and 1997 injuries must be reversed. On cross-appeal Coastal Mart asserts the agency correctly determined Bolinger had failed to establish a cumulative injury, and the district court therefore erred in reversing and remanding on that issue.
II. Scope and Standard of Review.
Iowa Code chapter 17A governs judicial review of decisions made by the workers' compensation commissioner. Iowa Code § 86.26 (2001). When the district court exercises its judicial review power it 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). Our review of the district court's decision requires application of 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 ultra vires; 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).
III. 1994 and 1997 Injuries.
Coastal Mart stipulated that Bolinger had suffered work-related injuries on both April 25, 1994, and January 25, 1997, but disputed that either injury had proximately caused a temporary or permanent disability. The agency concluded Bolinger had failed to establish proximate cause in regard to either injury. Bolinger forwards a number of reasons as to why the district court allegedly erred in upholding the agency's decision.
Bolinger first asserts the agency erroneously required her to establish that her injuries were the "sole proximate cause" of any disability. We cannot agree. In setting forth the law to be applied to a proximate cause determination, the agency correctly stated that Bolinger bore the burden of proving an alleged injury was "a proximate cause of the disability on which the claim is based," and that a cause is proximate "if it is a substantial factor in bringing about the result; it need not be the only cause." See Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Moreover, reading the agency's analysis of the medical and other evidence, it seems clear the agency's decision turned on a conclusion that Bolinger had established only a possible, rather than a probable, causal connection between the injuries and any disability.
Bolinger asserts the agency's assessment is flawed, as it disregarded or rejected medical evidence without justification and on an arbitrary and unreasonable basis. Once again, we cannot agree. A fair reading of the agency's decision reveals it was ultimately informed by a combination of what the agency viewed as weak and somewhat equivocal medical evidence, and Bolinger's prior statements and claims that indicated neither the 1994 nor 1997 injury proximately caused any current disability. It is well established that it is the role of the agency to determine the weight to be given to any of the evidence, and it may accept or reject a controverted expert opinion in whole or in part. Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998). In addition, Bolinger's lay testimony "is both relevant and material upon the cause and extent of injury." Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996). When viewed in total, the record supports the agency's treatment of the evidence, as well as its conclusion that Bolinger failed to establish the necessary proximate cause.
Bolinger challenges the agency's reliance on her testimony from the prior workers' compensation proceeding as an improper credibility assessment by the agency. However, the agency in this proceeding did not expressly make a finding concerning Bolinger's credibility. It simply gave weight to her claims and testimony in the prior workers' compensation proceeding. The agency was no less able than the deputy to assess the weight to be given these facts. See Trade Professionals, Inc. v. Shriver, 661 N.W.2d 119, 125 (Iowa 2003) (noting agency is not required to remand to deputy for reassessment of findings of fact, unless "demeanor of witnesses is a substantial factor").
On review, the question is not whether the evidence supports a finding different from the agency's but whether the evidence supports the findings the agency actually made. Ward v. Iowa Dep't of Transp., 304 N.W.2d 236, 238 (Iowa 1981). Here, while there is certainly evidence that supports Bolinger's claims, there is also a significant amount of evidence that indicates neither the 1994 nor the 1997 injury was a substantial contributing factor to any disability from which Bolinger suffered at the time of hearing.
Bolinger did receive a five-percent impairment rating from Dr. Bahls "for her injury related to April 25, 1994." Bolinger further points to the voluntary benefit payment from Coastal Mart, which may be considered evidence of a work-related injury. See Tussing v. George A. Hormel Co., 461 N.W.2d 450, 452 (Iowa 1990). However, all this evidence demonstrates is that Bolinger has already been compensated for a five percent industrial disability stemming from the 1994 injury. Dr. Bahls offered no testimony or opinion as to whether Bolinger had suffered any additional impairment. The more telling medical evidence was provided by Dr. McGuire. This evidence, while lending some support to Bolinger's position, is at times equivocal as to causation, and occasionally damaging to Bolinger's claims.
Most significantly, Dr. McGuire never testified to causation with any specificity. Although he did provide impairment ratings related to Bolinger's condition, he initially did not tie them to any work-related injury. He then agreed with counsel's statement that there was a "significant and material relationship" between the impairment rating and the 1994 injury. However, that opinion was rendered without the benefit of several items of information related to the 1992 injury. In addition, when Dr. McGuire was asked to explain the opinion, he made statements to the effect that Bolinger's work "irritated" her degenerative condition and "triggered" or "worsened" some of Bolinger's symptoms, and that work activities such Bolinger's "seem to kind of aggravate this [the degenerative disk condition] and can be a factor as we age, and there's further degeneration."
While Dr. McGuire did testify that the current state of Bolinger's back condition could be traced, at least in part, to the 1994 injury, he admitted it was unclear whether Bolinger's condition originated with the 1992 or 1994 injury, and that at least part of Bolinger's pain was due to her degenerative condition. He also stated that at some point in time Bolinger's symptoms would "probably not really [be] related to that work incident in '94," but did not specify when that point was or would be reached. His testimony indicated that time could be as early as 1998 or as late as 2008, but that Bolinger's "symptoms" in 1997 were "still probably related to work." He also stated that "almost anything trivial" could "trigger another incident of symptoms."
In addition, Dr. McGuire concluded the 1997 slip and fall did not work a profound change in Bolinger's condition. Although he noted a new disk herniation was discovered during the 1997 surgery, he did not specifically and causally tie the herniation to her injury. He testified only that the 1997 fall "may have made this disk bulge a little worse."
Clearly, there was evidence in the record that supported Bolinger's claims. Just as clearly, however, there was evidence from which a reasonable fact finder could conclude that the 1994 and 1997 injuries did not proximately cause any disability. See 2800 Corp. v. Fernandez, 528 N.W.2d 124, 126 (Iowa 1995) ("An agency's decision does not lack substantial evidence because inconsistent conclusions may be drawn from the same evidence."). The agency's proximate cause finding was supported by substantial evidence.
Although Bolinger asserts the agency failed to consider whether the injuries were compensable as aggravations of a preexisting condition, the agency's decision, when read as a whole, encompasses claims of aggravation. See Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 761 (1956) ("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."). Even though the agency did not set forth any case law regarding aggravation, it explicitly found that Bolinger failed to prove either injury proximately caused her alleged disability. In reaching this conclusion the agency both noted Bolinger's history of back problems, dating back to 1992, and considered the impact each of these incidents had on her degenerative medical condition.
IV. Cumulative Injury.
In reversing and remanding the cumulative injury issue to the agency, the district court concluded the agency had applied the wrong legal standard for assessing when a cumulative injury has occurred. It appears the court interpreted the agency's decision as requiring Bolinger to prove some form of incident or traumatic injury in the days leading up to March 24. On cross-appeal Coastal Mart asserts the agency decision was supported in fact and law. We must agree.
The agency decision stated, in relevant part:
Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). . . .
When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
Claimant testified she left work in a dispute over how many coworkers would be available. No event occurred that day. Claimant had been working regularly and as recently as February 16, 1998, had reported to Dr. McGuire she was working 35-40 hours a week and had minimal back pain. No cumulative injury occurred on that day. Claimant has failed to prove she suffered an injury that arose out of and in the course of her employment on March 24, 1998.
The law relied upon by the agency, although clarified in more recent cases, is still a correct statement of the law of cumulative injury. Moreover, we believe the district court has read the agency's findings too narrowly. While the agency decision could be read as rejecting Bolinger's claim because no specific incident or injury occurred on March 24, 1998, such a finding would be directly contrary to the case law the agency cited in the immediately preceding paragraphs.
We are obliged to broadly and liberally apply the agency's findings to uphold rather than defeat its decision. Ward, 304 N.W.2d at 237. When we do so, we conclude the agency rejected Bolinger's cumulative injury claim because it determined Bolinger was not suffering from a work-related functional impairment that impacted her ability to perform her job duties, and that she left her job with Coastal Mart, not because of any cumulative injury, but because she felt Coastal Mart had not provided an adequate number of employees to cover work shifts. See Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 444 (Iowa 1999) (defining necessary proof in a cumulative injury claim). As this decision was supported by substantial evidence in the record, the district court should have affirmed the agency's cumulative injury determination.
V. Conclusion.
We have explored all the claims in this appeal, whether or not specifically discussed. We conclude that the entirety of the agency decision was supported by substantial evidence, and based upon a correct application of law. Accordingly, we affirm the district court decision to the extent it upheld the agency's decision as to the 1994 and 1997 injuries, but reverse the court's decision to the extent it reversed and remanded the agency's decision as to the cumulative injury claim. The agency decision is affirmed in its entirety.