Opinion
No. 2-665 / 01-1734.
Filed March 12, 2003.
Appeal from the Iowa District Court for Kossuth County, FRANK B. NELSON, Judge.
The petitioner appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision. AFFIRMED.
Mark S. Soldat, Algona, for appellant.
Michael S. Roling of Peddicord, Wharton, Spencer Hook, P.C., Des Moines, for appellee.
Considered by HECHT, P.J., and VAITHESWARAN and EISENHAUER, JJ.
EISENHAUER, J.
Christa Christensenappeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision. She contends the commissioner's findings and conclusions were illogical. We affirm.
I. Background Facts and Proceedings. The long history of this case, now exceeding ten years in litigation, has been set forth in a prior appeal to our supreme court and an appeal to this court. See Christensen v. Snap-On Tools Corp. I, 554 N.W.2d 254 (Iowa 1996); Christensen v. Snap-On Tools Corp. II, 602 N.W.2d 199 (Iowa Ct.App. 1999). Most recently, this court reversed and remanded the case to the workers' compensation commissioner for proper consideration and weighing of the lay testimony regarding Christensen's injuries. Christensen II, 602 N.W.2d at 201. On remand, the commissioner found the lay testimony confirmed the medical evidence and did not establish a loss of use of Christensen's right arm greater than ten percent. Accordingly, the commissioner ordered compensation be paid to Christensen at the scheduled rate for a ten percent permanent partial disability. On judicial review, the district court affirmed.
Christensen suffered two injuries. She was diagnosed with right lateral epicondylitis of the right elbow. She also suffered an injury to her right forearm. The commissioner's disability rating encompasses both injuries.
In this appeal, Christensen contends the district court erred in affirming an agency decision which (1) gave no logical consideration to the evidence of permanent impairment to the right elbow, (2) illogically adopted inconsistent impairment ratings, and (3) illogically determined the impairment ratings covered all impairments claimed and proved in this case.
II. Analysis. Iowa Code section 17A.19(10) (1999) sets forth the circumstances under which the court must reverse an agency action.
The court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
. . .
f. Based upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole.
. . .
i. The product of reasoning that is so illogical as to render it wholly irrational.
j. The product of a decision-making process in which the agency did not consider a relevant and important matter relating to the propriety or desirability of the action in question that a rational decision maker in similar circumstances would have considered prior to taking that action.
. . .
m. Based upon an irrational, illogical, or wholly unjustifiable application of law to fact that has clearly been vested by a provision of law in the discretion of the agency.
n. Otherwise unreasonable, arbitrary, capricious, or an abuse of discretion.
Iowa Code §§ 17A.19(10)(i), (j), (m) (n). We review a district court's review of agency action for correction of errors of law. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001).
Neither party cites caselaw interpreting these sections, and we have found none.
The limited issue presented for our consideration is whether the commissioner's findings and conclusions were the product of reasoning that is so illogical as to render them wholly irrational. The commissioner reasoned:
It is found that although the percentage estimates assigned by the medical evaluators and those assigned by the lay witnesses differ greatly, the descriptions of claimant's fatigue, loss of endurance, pain, inability to perform certain tasks, etc., are in keeping with the ten percent ratings of impairment assigned by the doctors. A person with a ten percent loss of use of her right arm might well be expected to be less able to lift groceries, or clean a carpet, do laundry, or to work with that arm all day at a job and be tired at night. A person who has lost ten percent of the use of the arm may well be able to use that arm all day at a physical labor job, then experience pain or loss of use in the arm in the evening hours after working all day. A ten percent impairment of the arm is not inconsistent with the loss of coordination, fatigue, tingling pain, loss of pain-free function, etc., as described in the functional capacity evaluation, as described by claimant, and as described by the lay witnesses. Generally, the symptoms described by the lay witnesses, the impairment described by the functional capacity evaluation, and the ratings by the two doctors are consistent with each other. The only major discrepancy between the lay testimony and the medical ratings is the differences in percentages assigned by the medical doctors and those assigned by the lay witnesses.
It is found that the lay testimony does not conflict with the medical evidence. Rather, the lay testimony, other than the percentage estimates, is found to buttress, confirm, and corroborate the medical findings. The lay testimony does not indicate a loss of use greater than ten percent.
We will not disturb those findings.
Christensen notes that in the original December 1994 district court order on judicial review the court states, "When the record is viewed as a whole, the evidence supports petitioner's argument that she suffers from more than a ten percent impairment to her right arm." The district court's role on judicial review, however, did not include fact-finding. On appeal, the supreme court affirmed the district court's order remanding the case and directed the commissioner to give proper consideration to both medical and lay evidence and reassess the functional capacity of Christensen's right arm, or clarify its prior ruling. Christensen I, 554 N.W.2d at 257. However, no judicial review decision in the history of this case concluded as a matter of law that Christensen's impairment is greater than ten percent. Christensen contends the district court's failure to require the agency to find greater than ten percent disability is tantamount to an abdication of judicial review. She contends, in particular, that the district court erred in failing to hold the agency's remand decision is illogical. See Iowa Code §§ 17A.19(3)(i) and (m). Christensen contends a rational person must find disability in excess of ten percent because both the medical and lay evidence conclusively requires it. She notes that although the two medical experts rated her impairment at only ten percent, their ratings are inconsistent to the extent they are based upon different features of physical impairment. When carefully scrutinized and combined, the component parts of the two medical ratings form a rational basis for Christensen's contention that the total impairment found by Dr. Donovan and Dr. DiBartolo exceeded ten percent.
Christensen further contends the agency's finding of ten percent impairment is illogical because it is based upon the two medical ratings that failed to quantify her disability resulting from epicondylitis. She also posits the agency's finding of ten percent disability is illogical because it is based upon the doctors' ratings of impairment derived from the AMA Guides to the Evaluation of Permanent Impairment. The Guides' authors concede its failure to quantify certain aspects of disability such as pain, loss of stamina, and the like. Given the inconsistent and incomplete features of the two ten percent ratings based upon the AMA Guides, Christensen contends the agency's finding of ten percent disability is illogical and irrational particularly in light of the uncontroverted lay testimony documenting loss of stamina, increased fatigue, and loss of physical function substantially in excess of ten percent.
A rational person certainly could, on this record, find Christensen sustained a disability greater than ten percent. However, after a careful review of the record, we cannot say the agency's decision is so illogical or irrational as to permit the court on judicial review to dictate a different outcome. The legislature's grant of judicial power to reverse an agency decision that is the "product of reasoning . . . so illogical as to render it wholly irrational," Iowa Code section 17A.19, did not confer upon courts wholesale authority to substitute their judgment for that of agencies whenever courts might favor a different outcome in a contested case. After a careful review of the record, we are unable to conclude that the agency's decision is so wholly irrational as to mandate reversal in this case. Accordingly, we affirm.
AFFIRMED.
Vaitheswaran, J., concurs; Hecht, P.J., dissents.
I respectfully dissent. The agency's arbitration decision found Christensen sustained a ten percent loss of use of her right upper extremity as a result of a crush injury sustained on November 16, 1989. In an appeal decision of April 21, 1994, the Commissioner affirmed the finding that Christensen suffered a ten percent loss of use but concluded she was entitled to medical benefits for two distinct injuries: (1) right lateral epicondylitis; and (2) a crush injury to the right forearm sustained on November 16, 1989.
Christensen sought judicial review, contending in part that she had sustained a scheduled member loss in excess of ten percent. The district court's ruling on judicial review noted the record "[w]hen viewed as a whole . . . supports [Christensen's] argument that she suffers from more than ten percent impairment to her right arm." The district court reasoned the case should be remanded to the agency for (1) consideration of lay testimony relevant to physical impairment and (2) determination of whether Christensen sustained arm impairment as a result of epicondylitis in addition to the ten percent loss of use which resulted from the forearm crush injury. Our supreme court affirmed the district court's decision and remanded the case to the agency to permit the agency to "either reassess the functional capacity, considering both injuries, or clarify the ruling." Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996).
In her first remand decision issued on December 29, 1997, the Commissioner discounted Christensen's lay evidence relevant to disability because the lay witnesses had no medical training, they were not trained in evaluation of loss of functional impairment or use of the American Medical Association's Guides to the Evaluation of Permanent Impairment, and their opinions were "not supported by any objective evidence other than their observations." The remand decision found Christensen sustained no loss of use attributable to epicondylitis, and again found she had sustained a 10% loss of use as a consequence of her right forearm crush injury.
This court reversed the Commissioner's 1997 remand decision. We concluded the agency erred as a matter of law in discounting lay testimony solely because it was not medical testimony, and remanded "for a proper consideration and weighing of lay testimony."
In his remand decision filed on December 19, 2000, the agency's Chief Deputy asserted this court misread the Commissioner's first remand decision:
That decision did not reject or dismiss the lay testimony because it was not medical testimony; rather, that decision noted the lay nature of the testimony. Just as this agency must often decide which of two medical opinions will be given greater weight based on various factors such as the experience and training of the physicians, their specialties, their amount of contact with the patient, etc., so too it is appropriate to note that one opinion on impairment is given by a trained medical professional using recognized guides for rating impairment, and another opinion is given by a lay witness lacking medical training and without use of any recognized guides. To note that difference was not the same as rejecting the lay evidence.
I respectfully disagree with this characterization of the first remand decision. Notwithstanding the agency's assertion that "[t]here is no presumption that the Guides will always prevail over other methods of rating impairment, or other types of medical evidence, or other types of non-medical evidence," both of the remand decisions in this case and the agency's rules evidence a clear predisposition to credit the Guides in particular, and medical evidence of impairment in general, over lay testimony when determining permanent partial disabilities to scheduled members under Iowa Code section 85.34(2).
My analysis begins with the agency's second remand decision which cited Mead v. The Dial Corp., File No. 1003299 (IA Workers' Comp. Comm., Aug. 1, 1995). In Mead, the agency interpreted its rule 343 IAC 2.4 as an affirmation of the Guides as the best evidence for determining scheduled member disability. The agency has noted elsewhere that there may be rare instances when a rating based upon the Guides is not the best evidence. For example, if there are severe permanent restrictions and a low impairment rating then disability may appropriately be based on the permanent restrictions. See Smith v. Winnebago Industries, File No. 824666 (IA Workers' Comp. Comm., June 29, 1994). It must be noted that both impairment ratings and permanent restrictions are provided by medical experts.
What significance, then, does the agency give to lay testimony in the determination of scheduled member disabilities? In Mead, the agency posited that "[n]onmedical opinion can buttress but should not supplant the medical evidence," suggesting lay evidence of impairment is, at best, of secondary importance in the assessment of disability. That the agency assigns lay evidence less weight than medical evidence when both are present on this issue is further evidenced by Mead's observation that "[n]onmedical evidence can buttress but should not supplant the medical evidence." Moreover, in the second remand decision in this case, the agency noted that "[l]ay testimony is often used by this agency to corroborate medical testimony where the two types of evidence are not in conflict."
The agency has found disability notwithstanding the absence of a rating or physical restrictions from a medical expert, see Bebout v. John Poston and Bill Carhoff, File Number 1169614 (IA Workers' Comp. Comm., Feb. 22,. 2000). However, the issue raised in this case is whether the agency discounted lay testimony in a case where ratings and physical restrictions were provided by medical experts.
I interpret this assertion as a statement of the proposition that if medical evidence of disability is available, countervailing lay testimony will be given lesser weight.
In this case, however, the expert and lay evidence of the extent of Christensen's disability was in conflict. The agency expressly acknowledged the great difference between the percentages of impairment assigned by the medical (ten percent) and lay evidence (fifty to seventy-five percent), but then found that "[t]he lay testimony does not conflict with the medical evidence." The agency's second remand decision offers no logical explanation of this apparent internal inconsistency. In the absence of a logical explanation, I conclude the agency has again, contrary to our remand order, discounted the lay evidence relevant to the extent of impairment in favor of the medical impairment ratings based entirely upon the Guides. As the Guides do not quantify impairment based upon fatigue, diminished endurance, and other less measurable but nonetheless real factors relevant to disability, Christensen was prejudiced by the agency's failure to weigh the lay opinions assigning percentages of disability.
See AMA Guides to the Evaluation of Permanent Impairment 10 (5th ed. 2001) ("Subjective concerns, including fatigue, difficulty in concentrating, and pain, when not accompanied by demonstrable clinical signs or other independent, measurable abnormalities, are generally not given separate impairment ratings. . . . The Guides does not deny the existence or importance of these subjective complaints to the individual or their functional impact. The Guides recommends that the physician ascertain and document subjective concerns. Because the presence and severity of subjective concerns varies among individuals with the same condition, the Guides has not yet identified an accepted method within the scientific literature to ascertain how these concerns consistently affect organ or body system functioning.")
I note that this is not a case in which the agency found the lay evidence of impairment to be incredible. See Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 272 (Iowa 1995).
I also conclude the agency's second remand decision should be reversed because it found no impairment of Christensen's arm due to epicondylitis. The agency's finding of ten percent loss of use was based upon two medical impairment ratings based upon the Guides. Neither of the rating physicians rated impairment attributable to epicondylitis. Dr. DeBartolo failed to mention the condition as a factor in his rating. Dr. Donovan listed right lateral epicondylitis as a diagnosis, but assigned a zero rating to it "at the present time" notwithstanding the fact that the condition "seems to be aggravated by various degrees of employment." The agency's second remand decision acknowledged Christensen's "loss of aggravation-free function of the elbow due to epicondyle sensitivity during employment" and the presence of a "hard lump on her elbow," but found no resulting impairment. I would reverse the agency's finding that Christensen's upper extremity is not impaired as a consequence of epicondylitis because (1) the finding is not supported by substantial evidence in the record as a whole, Iowa Code section 17A.19(10)(f); and (2) it is a product of reasoning that is so illogical as to render it wholly irrational, Iowa Code section 17A.19(10)(i).
The agency's reliance upon the medical impairment ratings of Dr. DeBartolo and Dr. Donovan do not in my view supply a logical or substantial basis for a finding of zero impairment resulting from epicondylitis. Dr. DeBartolo's failure to even acknowledge the diagnosis of epicondylitis was first rejected by the agency in its April 1994 appeal decision that determined Christensen was entitled to medical benefits for the condition. Dr. DeBartolo's failure to diagnose the condition was again implicitly rejected by the agency in the second remand decision (acknowledging Christensen's "loss of aggravation-free function of the elbow due to epicondyle sensitivity during employment" and the "hard lump on her elbow"). Thus, I conclude Dr. DeBartolo's failure to assign a rating for right lateral epicondylitis would not be deemed sufficient by a neutral, detached, and reasonable person to establish the absence of impairment resulting from that condition.
For similar reasons, I believe Dr. Donovan's opinion does not constitute logical or substantial evidence to support a finding of zero impairment from epicondylitis. Dr. Donovan, unlike Dr. DeBartolo, did diagnose right lateral epicondylitis and acknowledged that the condition was "aggravated by various degrees of employment." Having found that Christensen sustained "a loss of aggravation-free function of the elbow due to epicondyle sensitivity during employment [and a] hard lump on her elbow," a neutral, detached, and reasonable person would not fail to assign a percentage of impairment to the elbow attributable to epicondylitis. Accordingly, I would reverse the agency decision and again remand this case for a redetermination of Christensen's disability.