Opinion
No. 1-778 / 00-1742
Filed October 16, 2002
Appeal from the Iowa District Court for Scott County, James R. Havercamp, Judge.
The petitioner appeals from the district court's ruling on judicial review affirming the chief deputy workers' compensation commissioner's remand decision awarding partial disability benefits only for a scheduled member injury to the left arm. REVERSED AND REMANDED.
William J. Bribriesco and Daniel D. Bernstein of William J. Bribriesco Associates, Bettendorf, for appellant.
James C. Meehan, Sergeant Bluff, for appellee.
Heard by Sackett, C.J., and Miller and Hecht, JJ.
Pascual Magana appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision awarding him workers' compensation benefits for a scheduled injury. We reverse.
I. Factual Background.
Magana was born in Mexico in April of 1953. He has no formal education and cannot read or write proficiently. He spent several years working as a migrant worker and manual laborer in California, Texas, and Florida. He heard IBP's radio advertisement of Iowa job openings and began working at IBP's Columbus Junction plant in October of 1989.
In December of 1991, Magana experienced pain in his left shoulder. On December 19, 1991, when Magana first consulted Dr. Forrest Dean, the doctor recorded a history of pain in the left upper extremity and "radiating down the trapezius." Dr. Dean's progress notes through May 31, 1994, consistently report the patient's pain complaints in the "upper back," "periscapular area," "interscapular area," "medial aspects of the scapula," "left shoulder," and "left upper extremity." Dr. Dean variously assessed the condition as "overuse shoulder," "overuse left arm," and "overuse upper extremities and back," and "chronic pain and overuse in upper extremities."
Dr. Dean eventually referred Magana to Dr. R.F. Neiman, a neurologist, who found "limitations of left shoulder motion" on March 16, 1992, but concluded the patient's left upper extremity EMG and nerve conduction studies were normal.
Magana underwent a functional capacity assessment in July of 1992. The evaluators (a physical therapist and an occupational therapist) listed left shoulder pain as Magana's "major complaint," found his shoulder, neck, and trunk mobility to be minimally decreased, and reported the patient "consistently complained of interscapular and low back pain." Moreover, the evaluators recommended Magana should restrict his overhead lifting to five pounds and limit his work to "sedentary to light exertion" classifications.
Dr. Dean next referred Magana to an orthopedist, Dr. Koert Smith. In his report of October 8, 1992, Dr. Smith noted Magana's complaints were primarily related "to left shoulder and upper extremity." Asked to express his opinion on permanent physical impairment, the doctor observed:
With respect to permanent impairment, the AMA Guidelines would offer him little in the way of impairment as he has normal objective exam with normal neurologic exam, normal motion of the shoulder, but his functional capacity evaluation does indicate that he does have some significant and persistent limitations involving his left upper extremity. Although somewhat arbitrary I would rate him at 5% left upper extremity impairment as his permanent impairment rating primarily because of the somewhat objective limitations on the functional capacity evaluation.
Magana was also evaluated by Dr. Robert Chesser in February of 1995. The doctor believed the patient's left scapular pain was caused by "a musculoligamentous strain with a chronic tension myalgia" and found limited range of left shoulder motion "associated with pain inhibition." Dr. Chesser rated Magana's impairment at six percent of the left upper extremity or four percent of the whole person.
The final agency decision found Magana "sustained an injury to the left upper extremity, but not to the body as a whole" and quantified the impairment at five percent of the arm. The district court affirmed the agency's decision on October 17, 1996, and Magana filed a notice of appeal.
In our appeal decision of March 27, 1998, we noted permanent injuries to the shoulder are "unscheduled" and should be treated as injuries to the body as a whole. See Prewitt v. Firestone Tire Rubber Co ., 564 N.W.2d 852, 854 (Iowa Ct.App. 1997). Permanent injuries to the arm are classified as "scheduled" injuries. See Iowa Code § 85.34(2) (1997). This legal distinction between unscheduled shoulder injuries and scheduled arm injuries is blurred by medical terminology. Members of the medical community employ the AMA Guides to the Evaluation of Permanent Impairment as a tool in rating permanent physical impairment. The Guides define "upper extremity" to include the hand, wrist, elbow, and shoulder. See AMA Guides to the Evaluation of Permanent Impairment 13 (4th ed. 1993). In sharp contrast, however, the term "arm" under section 85.34(2) excludes the shoulder. See Prewitt , 564 N.W.2d at 855. After reviewing the record, we concluded:
"[t]he central issue in this case is whether Magana's injury to his left "upper extremity" includes merely the arm, rendering it a scheduled injury, or whether it includes the shoulder, rendering it a whole body injury. We are unable to determine from the record whether his injury occurred to the arm or to the shoulder. All the medical evidence indicates an injury occurred to the left "upper extremity." Throughout the record references to the terms "arm," "shoulder," and "upper extremity" occur. Yet it is impossible to determine whether they were used in the medical context pursuant to the AMA guidelines, or in the legal context pursuant to the Iowa Code rule on scheduled injuries. Even the Commissioner concluded Magana suffered an impairment to his "left upper extremity," but then limited benefits to the loss of use of his left arm.
We conclude substantial evidence does not exist in the record to support the finding Magana sustained a scheduled loss of the use of his left arm. Although the Commissioner was free to accept the testimony of Dr. Smith over that of Dr. Chesser, even Dr. Smith's testimony repeatedly referred to Magana's loss as an injury to his upper extremity. There was not further explanatory evidence to limit the injury to the arm (emphasis supplied).
Magana v, IBP. , No. 96-1989 (Iowa Ct.App. March 27, 1998).
We reversed and remanded the case to the agency for additional findings on the situs of Magana's actual impairment.
In its remand decision of July 23, 1999, the workers' compensation commissioner concluded "[c]laimant has not proved that the anatomical situs of his permanent disability is the body as a whole disability;" and "claimant's disability is limited to the left arm." The agency decision appears to rest upon the following findings: (1) Magana's medical diagnoses do not expressly refer "to any impairment of anything other than the left upper extremity;" (2) Dr. Chesser's finding of decreased range of motion in the left shoulder is "contrary to the majority of the medical evidence produced" and founded upon an examination "performed three and one-half years after claimant initially sought treatment for left arm pain;" (3) difficulty in finding a causal connection between the initial injury and the restricted range of left shoulder motion found by Dr. Chesser; (4) Magana "has no specific diagnosis which suggests a condition in the shoulder;" and (5) Magana's "assessment of the situs of his pain varies from time to time." Magana again sought judicial review and on September 28, 2000 the district court filed a decision affirming the commissioner's decision.
II. Standard of Review.
Judicial review of the actions of an administrative agency is governed by the standards of Iowa Code section 17A.19(8) (2001). Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 233 (Iowa 1996). The court acts in an appellate capacity by reviewing the agency's decision solely to correct any errors of law. Id. We do not exercise de novo review. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995).
The findings of the workers' compensation commissioner are akin to a jury verdict, and we broadly apply them to uphold the commissioner's decision. Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). We will reverse an agency's findings only if, after reviewing the record as a whole, we determine substantial evidence does not support them. Terwilliger, 529 N.W.2d at 271. Substantial evidence is not absent simply because it is possible to draw different conclusions from the same evidence. Riley v. Oscar Mayer Foods Corp., 532 N.W.2d 489, 491 (Iowa Ct.App. 1995).
III. Discussion.
In this appeal, Magana again contends the agency's scheduled member determination is not supported by substantial evidence. We first note that no additional record was made after we concluded in our 1999 decision that "substantial evidence does not exist in the record to support the finding Magana sustained a scheduled loss of use of his left arm." We shall now discuss each aspect of the agency's remand rationale to determine whether the final agency action is adequately supported in the record.
1) Absence of specific medical references to impairment beyond the left "upper extremity." The agency's remand decision notes that although the several medical diagnoses implicated the left shoulder and arm, both "upper extremities," upper back, neck and scapula, "there are no specific references to any impairment of anything other than the left upper extremity." This proposition offers no meaningful or legally sufficient justification for the agency's remand decision, however, because it was equally apparent at the time of our review of the record in 1999. As we noted in our prior decision, medical assessments of impairment of the "left upper extremity" based upon the AMA Guides do not exclude the left shoulder; and shoulder impairment is rated to the body as a whole. Accordingly, the fact that the medical expressions of permanent impairment referred only to the left upper extremity does not support the agency's remand decision.
2) Dr. Chesser's opinions. A reasonable fact finder could not conclude Dr. Chesser's findings are contrary to the majority of the medical evidence produced. As noted above, Dr. Neiman and the functional capacity evaluators made reference to limitation of Magana's left shoulder range of motion early on in the course of treatment. In short, Dr. Chesser's finding of moderately restricted range of motion in the shoulder was clearly consistent with the reports of other medical evaluators. Perhaps more significantly, Dr. Chesser's report was consistent with all other medical providers with respect to its reporting of the location of Magana's primary complaints.
The agency's remand decision observes Dr. Chesser's evaluation was conducted three and one-half years after Magana first sought treatment for "left arm pain." Although we do not disagree with the chronological aspect of the agency's assertion, the medical record of Magana's December 19, 1991 visit to Dr. Dean conclusively documents that the patient reported pain "radiating down the trapezius" and demonstrated slight crepitance in the left shoulder. Moreover, as noted above, Magana consistently complained of pain, and medical providers documented it, in his upper back, thoracic area, scapula and shoulder from the very beginning of the treatment. No reasonable fact finder could conclude on this record that the symptoms recorded by Dr. Chesser were "contrary to the majority of the medical evidence produced."
3) Causal connection between the initial injury and the restricted range of left shoulder motion found by Dr. Chesser. We reject the agency's conclusion that "it is hard to causally connect the limited range of motion in the left shoulder found by Dr. Chesser to the initial injury." This conclusion could only be reached if the agency ignored the consistent documentation of the location of Magana's pain in the upper back and shoulder. The most consistent feature of the medical providers' records is the repeated references to primary symptoms and complaints in locations other than Magana's arm. In this regard, it is significant that the only injection of medicine administered to Magana was applied to his left interscapular area on April 6, 1992. The agency's conclusion that "it is hard to causally connect the limited range of motion in the left shoulder" to the initial injury is not supported by substantial evidence in the record.
4) Specific diagnosis suggesting a condition in the shoulder. The agency found that Magana has received "no specific diagnosis which suggests a condition in the shoulder." This finding is also unsupported in the record. From the very beginning of the course of treatment forward, Dr. Dean repeatedly assessed Magana's problem as "overuse of the shoulder," "overuse upper extremities," "chronic back pain," and "chronic pain complaints of upper extremity and back." As noted in our 1999 decision, medical references to "upper extremity" fail to distinguish between the arm and the shoulder. We do not attribute the medical providers' choice of multiple descriptive terms and lack of specificity to Magana. Given the absolutely consistent and repeated references to scapular and upper back pain, a reasonable fact finder could not conclude on this record that the medical providers' diagnostic references to "upper extremity" referred only to Magana's arm.
5) Claimed inconsistency in Magana's "assessment of the situs of his pain." The agency's remand decision suggests "[c]laimant's assessment of the situs of his pain varies from time to time." If this conclusion constitutes an assertion that Magana did not consistently report, and the medical providers did not consistently record, pain in the patient's upper back, scapula or left shoulder, it is unsupported by substantial evidence in the record. The only medical providers who commented upon the consistency of Magana's symptomological reports were Dr. Dean (noting on January 15, 1993, that "Pt. is not describing change in pain pattern") and the functional capacity evaluators who observed that Magana "consistently complained of interscapular and low back pain." While it is true that Magana complained of, and providers recorded, pain in locations other than his upper back and left shoulder (e.g., low back and right arm), no medical provider opined and no reasonable fact finder could conclude on this record, without engaging in sheer speculation, that any of such complaints were contrived, unjustified, or otherwise incredible. In this regard, we note the agency did not, and could not on this record, expressly find the claimed variability of the situs of Magana's pain complaints negatively affected Magana's credibility. Multiple complaints of pain by one who performs repetitive manual labor in a packing plant are not, standing alone, sufficient to impugn the laborer's credibility. Thus, we conclude the agency's determination that Magana's injury was confined to the arm because his complaints were not sufficiently consistent is not supported by substantial evidence in the record.
IV. Conclusion.
The agency's determination that Magana's injury is confined to his arm is not supported by substantial evidence in the record. Accordingly, we again reverse the decisions of the district court and the agency and remand this case to the agency for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Sackett, C.J., concurs; Miller, J., concurs specially.
I concur in the result.
The May 9, 1995 arbitration decision shows the parties "stipulated that claimant sustained an injury which arose out of and in the course of his employment." As relevant to this appeal the issue was stated to be, "Whether claimant sustained an injury to a scheduled member, or sustained an industrial disability." More specifically, the issue was whether Magana's injury was to his left arm or was an injury to his shoulder as well.
The evidence in the record before the agency included references to Magana's left arm, left shoulder, upper extremity, upper extremities, upper back, periscapular area, and interscapular area. One impairment rating referred to Magana's "left upper extremity." The other referred to his "left shoulder and upper extremity." The agency's initial decision, before our remand for further proceedings, compounded the problem. Just before concluding Magana had sustained a scheduled member injury and was entitled to disability benefits based on "loss of use of his left arm" the agency found that Magana's impairment was "limited to the left upper extremity."
Our prior opinion stated substantial evidence did not exist in the record to support the agency's finding that Magana had sustained a scheduled loss of the use of his left arm. It did so, however, only after earlier stating, "We are unable to determine from the record whether his injury occurred to the arm or to the shoulder." We remanded to the agency for additional findings on the situs of the impairment, based on the existing record or the existing record supplemented by the receipt of additional evidence.
It has at all times been conceded that Magana sustained a work-related injury and the relevant issue has been limited to whether the injury was to his left arm or to his shoulder. If in fact the record did not contain substantial evidence to support a finding that Magana had sustained an injury limited to his left arm there would ordinarily be no reason to remand to the agency for additional findings as to the situs, because by process of elimination the injury would have to be to his shoulder and thus to the body as a whole. The statement in our prior opinion that the record did not contain substantial evidence Magana had sustained a scheduled loss of the use of his left arm must therefore be seen, in context, as stating that although it appeared the record did not contain substantial evidence supporting the agency's finding to that effect, the incompatibility of medical terminology and statutory terminology in the record together with the agency's failure to make clear that it had recognized and resolved the terminology problem left us unable or unwilling to so hold. Our opinion which remanded for additional findings on the issue of situs, after receipt of additional evidence if necessary, thus implicitly states that absent additional evidence clarifying that at least some references to Magana's "upper extremity" were intended to be references to his left arm the record would not support a finding his injury was limited to his left arm alone. No such evidence was presented upon remand. Our prior opinion therefore dictates the result we reach.