Opinion
No. 4-649 / 03-0855
Filed June 15, 2005
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Wal-Mart Stores, Inc. and Claims Management, Inc. appeal from the district court's ruling remanding a workers' compensation claim to the Workers' Compensation Commissioner. AFFIRMED.
Chad M. Von Kampen of Simmons, Perrine, Albright Ellwood, PLC, Cedar Rapids, for appellant.
Jason D. Neifert of Max Schott Associates, P.C., Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ., but decided by Sackett, C.J., and Vogel, Zimmer, Hecht, and Vaitheswaran, JJ.
Wal-Mart Stores, Inc. and Claims Management, Inc. appeal from the district court's ruling remanding a workers' compensation claim to the Workers' Compensation Commissioner. We affirm.
We will jointly refer to Wal-Mart and Claims Management, Inc. as "Wal-Mart."
I. Factual and Procedural Background.
Becky Jo Gump began working for Wal-Mart in 1985. Her initial job was to mark merchandise, but she was later given other assignments including checkout clerk and layaway clerk. Thereafter Gump was transferred to Wal-Mart's receiving department where she performed physically strenuous work unloading trucks, pulling pallets of merchandise, and stocking shelves. In 1988, she sustained a low back injury while lifting a container of rock salt that weighed forty pounds. She was then assigned to a different job receiving UPS deliveries for Wal-Mart.
Gump continued to have low back discomfort for which she received medical treatment from a surgeon, Dr. David Beck. In June of 1992, Dr. Beck reported that Gump had been experiencing intermittent low back discomfort for three years; and that these symptoms were "worse when she did a lot of physical activity." Dr. Beck performed a L5-S1 discectomy and Gump returned to work without restrictions at Wal-Mart on August 3, 1992. Dr. Beck assigned an impairment rating of eight percent for which Wal-Mart paid to Gump forty weeks of permanent partial disability benefits. Gump filed no contested case proceeding to recover additional benefits at that time.
Gump transferred briefly to Wal-Mart's claims department, and then became a department manager supervising checkouts at Wal-Mart. She was working in that capacity when she slipped on a wet floor and re-injured her low back while pushing a cart of merchandise in December of 1994. She was unable to work for approximately eight months. During the course of medical treatment for that injury, Gump underwent x-ray and MRI studies evidencing "degenerative disc disease from L3 to S1 with disk bulging and post-operative scarring." When she resumed work, Gump was assigned part-time work as a cashier in Wal-Mart's electronics department. Although she was able to return to work full-time, Gump "lived in pain every day," and some days were "more tolerable than others" depending on the level of her physical activity. She continued periodic conservative medical care. Her physical impairment was rated at ten percent of the body as a whole in 1996 when she was assigned a lifting restriction of thirty pounds.
Although Wal-Mart asserts at brief page seven that "[c]laimant was paid benefits for her prior impairment ratings," its supporting record references only evidence that Wal-Mart paid Gump forty weeks of compensation for the eight percent rating. We find no evidence in the record tending to prove Gump was paid additional compensation when she received a ten percent rating in 1995.
Gump had yet another injury in August of 1998 when she slipped from a ladder, jarred her back, and sprained her ankle and wrist. She was again treated conservatively and released without an increase in either her impairment rating or her physical restrictions.
Gump applied for and became manager of the store's housewares department in the late 1990's. After spending approximately a week in the course of her employment carrying merchandise including microwaves upstairs to storage bins, she reported an increase of her low back pain in January of 2000. She was referred to Dr. Yankey who recorded physical complaints of increased lumbar pain and left leg pain. The doctor assessed Gump's condition as "an aggravation of the degenerative disc disease of the lumber spine," prescribed medication and other conservative treatment modalities, and recommended sedentary activities. By February 17, 2000, however, Dr. Yankey opined Gump was "at or very near her pre-injury status" with respect to her low back pain, but noted the patient had reported "problems with her left leg giving out." Dr. Yankey's medical records report his opinion that the condition for which he treated Gump was "probably related to the previous back injury and not the current [2000] back injury."
Gump again consulted Dr. Beck, a surgeon, whose diagnosis on March 1, 2000 was that Gump "repetitively injured her back at work and [sustained] an accumulative injury." On the same date, the doctor observed that Gump was "much worse than she [had] been in quite some time" and predicted that a second lumbar surgery would probably help Gump tremendously. In his letter of May 8, 2000 Dr. Beck noted (1) Gump was "suffering from degenerative disc disease at L5-S1 that has been repetitively injured during the course of her employment at WalMart;" and (2) Gump's degenerative disc condition is much worse in the year 2000 than is (sic) has been in 1995."
Although Dr. Beck's medical record of March 1, 2000 and his letter report to counsel on May 8, 2000 do not expressly state Gump's condition had permanently worsened, both documents suggest that a "radical discectomy and fusion" might be indicated. And, as noted above, the May 8 letter expressly noted that Gump's "degenerative disc condition [was] much worse in the year 2000 than it [was] in 1995."
Dr. Justin Ban performed an impairment assessment in March of 2001. His resulting report noted Gump "ha[d] developed a permanent aggravation or recurrent injury to her lumbar spine as (sic) result of degenerative disc disease from repetitive use or a cumulative trauma disorder." The same report expressed Dr. Ban's understanding that his opinion was consistent with that of Dr. Beck, and rated Gump's total physical impairment at twenty-one percent on March 28, 2001. Dr. Ban's rating attributed ten percent impairment to Gump's condition as it existed before the January 2000 incident and allocated eleven percent of the impairment to "a permanent aggravation or recurrent injury to her lumbar spine as (sic) result of degenerative disc disease from repetitive use or a cumulative trauma disorder." Dr. Ban advised Gump to avoid repetitive squatting, crouching, bending, twisting, turning or crawling.
Gump filed an arbitration proceeding with the Workers' Compensation Commissioner alleging the "cumulative effects of [Gump's] work activities coupled with an acute injury which occurred on January 19, 2000" caused disability for which she was entitled to permanent partial disability benefits. She testified as follows during the hearing on January 10, 2002:
Q. Okay. Between 1995, when you finally went back to work after the '94 episode, and 2000, when this episode happens that brings us here today, how was your back getting along?
A. I lived in pain every day. Some days it was more tolerable than others.
Q. Was there ever a day where you didn't have any pain?
A. No.
Q. Okay. Was there any connection between activities or doing increased activities and the level of pain you would have?
A. The more I did, the more I hurt.
After the agency hearing, a deputy Workers' Compensation Commissioner found the January 2000 injury did not "materially worsen [Gump's] back on a permanent basis, but was merely "another one of many aggravations of a long-standing degenerative back condition." Moreover, the deputy found that Gump failed to prove the January 2000 injury "permanently accelerated or worsened" her condition. The deputy noted Dr. Ban's "clear view" to the contrary, but apparently gave it less weight because the deputy believed the opinions of Dr. Ban and Dr. Beck were not entirely consistent. The deputy interpreted Dr. Beck's opinion as attributing any increase of Gump's disability to the degenerative condition rather than to a work-related injury. Moreover, the deputy was "unable to interpret Dr. Beck's view to mean that the degenerative disc condition [was] work related." Accordingly, the deputy's arbitration decision concluded that Gump was entitled to no further benefits as a consequence of the January 2000 injury. The deputy's decision made no reference to Gump's cumulative injury claim.
In discussing the consistency or lack thereof between the opinions of Dr. Beck and Dr. Ban, the deputy observed:
While the views of Dr. Ban are clear, his assertion that Dr. Beck shares his views is not supported by the record. . . . Dr. Beck does not indicate that he views the latest injury as a permanent worsening of the condition. On the contrary, he attributes the worsening to the degenerative [condition]. By definition, a degenerative condition worsens with time, with or without a work injury. I am unable to interpret Dr. Beck's views to mean that the degenerative disc condition is work related.
Gump sought intra-agency review. The Interim Workers' Compensation Commissioner summarily affirmed the deputy's proposed decision which, he concluded, was supported by Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999). Gump thereafter filed a petition for judicial review asserting among other things, that the agency erred in failing to (1) consider and resolve her cumulative injury claim, and (2) find she had sustained a permanent partial disability entitling her to compensation. The district court granted relief to Gump, reasoning that the agency may have ignored Dr. Beck's medical report of March 1, 2000 and consequently misapprehended that doctor's opinion on the question of whether Gump sustained a work-related cumulative injury resulting in permanent disability, and, as a consequence of that misapprehension, may have discounted Dr. Ban's opinions. The district court therefore remanded the case to the agency "to ensure that Dr. Beck's March 1, 2000 medical opinion may be considered along with the other evidence," and to give the agency "the opportunity to fully and comprehensively review the record in reaching a decision in this case." Wal-Mart appeals, contending (1) the agency's decision denying Gump's claim for permanent disability benefits is supported by substantial evidence and is consistent with the applicable law, and (2) the district court erred in remanding the case to the agency.
In Ellingson, 599 N.W.2d at 441, the claimant sustained a work-related injury when a forty-pound box fell on her head on January 4, 1985. She resumed working within three days after the injury, but was repeatedly thereafter taken off work when her symptoms were exacerbated both before and after a resulting cervical surgery in March of 1990. Ellingson filed a petition claiming two dates of injury: (1) the date of the 1985 injury; and (2) June 17, 1992, the date when a claimed cumulative injury became manifest. The agency found Ellingson sustained an injury in 1985, but found the evidence insufficient to prove a subsequent cumulative injury. In distinguishing claims of cumulative injury from claims asserting aggravation of prior injury, our supreme court noted:
To the extent that the evidence reveals a subsequent aggravation of Ellingson's January 4, 1985 injury, this is a relevant circumstance in fixing the extent of her permanent disability. Aggravating work activities were doubtless a causal factor with respect to the total degree of disability that she exhibited at the time of the hearing. It is clear, however, that she may not establish a cumulative-injury claim by merely asserting that her disability immediately following the January 4, 1985 injury was increased by subsequent aggravating work activities. That circumstance only serves to increase the disability attributable to the January 4, 1985 injury. To show a cumulative injury she must demonstrate that she has suffered a distinct and discreet (sic) disability attributable to post-1985 work activities rather than as an aggravation of the January 4, 1985 injury.
Ellingson, 599 N.W.2d at 444. The Commissioner's appeal decision in the case before this court does not explain why the agency concluded Ellingson supports the deputy's decision that made no reference to cumulative injury.
II. Scope and Standard 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 of Iowa 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(10) (2001) 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). As to the agency's factual determinations, the court shall reverse, modify, or grant other appropriate relief from agency action if it determines substantial rights of the person seeking judicial relief have been prejudiced because the agency action is 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. Iowa Code § 17A.19(10)(f); Mycogen Seeds v. Sands 686 N.W.2d 457, 463-65 (Iowa 2004).
The fighting issue in this case is whether the agency correctly determined that Gump failed to prove her entitlement to additional permanent partial disability benefits. We conclude Iowa Code chapter 85 clearly vests in the Workers' Compensation Commissioner the authority to determine facts required to resolve permanent disability claims of the type asserted by Gump. See Iowa Code § 85.34(2)(u). Because the agency is charged with such responsibility, the agency must necessarily make factual findings to determine that right. See Iowa Code § 85.21; Zomer v. West River Farms, Inc., 666 N.W.2d 130, 132-33 (Iowa 2003). We are therefore bound by the agency's findings of fact essential to the resolution of Gump's permanent partial disability claim if they are supported by substantial evidence. See Mosher, 671 N.W.2d at 508.
We may reverse, modify, or remand to the commissioner for further proceedings if the agency's action was affected by an error of law, or if it is not supported by substantial evidence when the record is viewed as a whole. Quaker Oates Co. v. Ciah, 552 N.W.2d 143, 150 (Iowa 1996). "Substantial evidence" is defined as the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.
Iowa Code § 17A.19(10)(f)(1). "When [the] record is viewed as a whole" in section 17A.19(10)(f) means that the adequacy of the evidence in the record before the court to support a particular finding of fact must be judged in light of all the relevant evidence in the record cited by any party that detracts from that finding as well as all of the relevant evidence in the record cited by any party that supports it. . . .
Iowa Code § 17A.19(10)(f)(3). The commissioner's decision does not lack substantial evidential support merely because inconsistent conclusions could be drawn from the same evidence. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). The ultimate question is not whether the evidence supports a different finding, but whether it supports the findings the commissioner actually made. Id.
Our task is to "broadly and liberally apply [the deputy's] findings to uphold rather than to defeat the agency's decision." IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632 (Iowa 2000). "Finally, we interpret the workers' compensation statute liberally, keeping in mind that the law was enacted `for the benefit of the working person.'" Stone Container Corp. v. Castle, 657 N.W.2d 485, 489 (Iowa 2003).
III. Discussion.
We understand the district court's ruling as an expression of the conclusion that the agency did not consider the March 1, 2000 medical record of Dr. Beck in deciding whether Gump sustained a cumulative injury entitling her to permanent partial disability benefits. We agree with the district court's conclusion. Our analysis begins with the fact that the arbitration decision made no reference to Gump's claim of cumulative injury. And, although the agency's appeal decision cites Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999) — a case that does address the subject of cumulative injury — as additional authority supporting the deputy's decision, the Commissioner's summary decision provided no explanation of why the rule in Ellingson applies in this case.
Indeed, the deputy's decision focused expressly upon whether "the January 2000 injury permanently accelerated or worsened the underlying degenerative back condition." This of course was the proper analytical framework for the determination of whether Gump sustained an aggravation of her prior injury. That framework is not, however, identical to the one required for determination of Gump's cumulative injury claim. See Ellingson, 599 N.W.2d at 444. Proper analysis of the cumulative injury claim requires the agency to focus not simply as it apparently did on whether Gump suffered a permanent disability as a consequence of a work-related incident in January of 2000, but rather on the broader question of whether she sustained a permanent disability from the cumulative effects of work-related activities during and prior to January 2000. An agency disposition in Wal-Mart's favor on Gump's aggravation claim does not factually or legally preclude a different outcome on her cumulative injury claim.
As noted above, the deputy rejected Dr. Ban's assertion that his views were shared by Dr. Beck. In particular, the deputy found Dr. Beck shared neither Dr. Ban's opinion that Gump's injury was work-related nor Dr. Ban's opinion that the worsening of the degenerative condition was permanent. Like the district court, we are not confident that the agency considered Dr. Beck's medical record of March 1, 2000 when it made these findings upon which the agency relied when assigning weight to the opinions of Dr. Ban.
When Dr. Beck's record of March 1, 2000 is taken together with his letter report of May 8, 2000, we are unable to discern a factual basis supported by substantial evidence for the agency's finding of inconsistency between Dr. Beck's opinions and those of Dr. Ban. Both doctors expressed the opinion that Gump had suffered a work-related cumulative injury. Both doctors also expressed the view that Gump's condition had materially worsened as a consequence of the work-related injury: Dr. Ban expressed this in terms of a percentage increase in Gump's permanent partial disability, while Dr. Beck expressed it by opining that Gump was "much worse than she has been in quite some time," and by noting that Gump's degenerative disc condition was "objectively . . . much worse in the year 2000 than [it was] in 1995."
As noted above, the analytical framework to be applied in the analysis of cumulative injury claims is distinct from the framework applied in cases alleging aggravation of prior injuries. Our decision to affirm the district court's remand order is strongly influenced by the agency's failure to sufficiently enunciate and explain a ruling on Gump's cumulative injury claim. We find the record inadequate to allow judicial review of the agency's action on that claim, and for this additional reason we conclude the district court correctly ordered a remand in this case. Accordingly, we affirm the district court's decision remanding the case to the agency for reconsideration of Gump's cumulative injury claim in light of all of the evidence including Dr. Beck's medical record of March 1, 2000. AFFIRMED.
It is of course the agency's function to find the facts. By our decision, we express no view as to how the agency should resolve this matter on remand.