No. 4-516 / 03-1870.Court of Appeals of Iowa.
August 26, 2004.
Appeal from the Iowa District Court for Polk County, Glen E. Pille, Judge.
Pamela Clark appeals the district court’s judgment on judicial review affirming the workers’ compensation commissioner’s denial of permanent partial disability benefits. REVERSED ANDREMANDED.
Thomas Werner, Des Moines, for appellant.
Harry Dahl, Des Moines, for appellees.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
HUITINK, P.J.
I. Background Facts Proceedings
Pamela Clark began her employment with Vicorp Restaurants, Inc. in November 1989 as a hostess and waitress for a Baker’s Square restaurant in Des Moines. In 1991 Clark suffered a workplace injury to her neck that required a cervical fusion at C6-7. She eventually received 150 weeks of permanent partial disability benefits and returned to work with a twenty-five-pound weight restriction.
On December 2, 1997, Clark suffered another workplace injury to her neck and shoulder. Dr. Lynn Nelson performed a cervical fusion at C5-6 on August 31, 1998, and Dr. Delwin Quenzer performed a right shoulder arthroscopy and subacromial decompression in April 1999, and an open acromioplasty and excision of the clavicle in November 1999. The workers’ compensation commissioner approved a settlement agreement between Clark and Vicorp awarding 125 weeks of permanent partial disability benefits. Clark returned to Vicorp in February 2000. On August 2, 2000, Dr. Quenzer opined Clark suffered a total impairment rating of five percent of the right upper extremity.
Clark’s present claim for workers’ compensation benefits stems from the neck and back injuries she sustained while serving and clearing tables on July 7, 2000. According to her testimony, Clark felt a pop in her neck as she handed plates to a customer, and later felt a pop in her lower back as she was carrying a tub of plates, glasses, and silverware. Clark reported the incident to her supervisor and sought medical attention the next day at the Lutheran Hospital emergency room. Penny Osborn, a physician’s assistant, found Clark had suffered a musculoskeletal sprain of the cervical and lumbar spine and gave her a work excuse to return on July 12, 2000, with no lifting of over ten pounds for two weeks. On July 18, 2000, Dr. Nelson examined Clark and described her injuries as “myofascial global back pain.” Dr. Nelson recommended physical therapy and an evaluation by a physiatrist. Clark went to see Dr. Quenzer on July 27, 2000, complaining of numbness in both her arms and legs, and aching pain in her back and neck. Dr. Quenzer determined she had “dysesthesias of undetermined etiology” and recommended she see a neurologist or physiatrist. In a letter provided to Vicorp, Dr. Quenzer wrote he could not state with a reasonable degree of certainty that Clark’s injuries were the result of her employment activities. Vicorp thereafter refused to make any further payments for Clark’s medical expenses. Clark took a medical leave of absence from Vicorp.
On September 6, 2000, Clark’s personal physician, Dr. Dennis Hopkins, referred her to Dr. Michael Jacoby, a neurosurgeon. Dr. Jacoby concluded Clark’s back and neck pain were not neurological but were likely musculoskeletal in nature. Thereafter Clark was seen by physiatrist Dr. Leslie Hillman on November 14, 2000. Dr. Hillman found Clark had myofascial neck and back pain, vocational issues, headaches, and subjective sensory deficits without correlation on nerve studies. Clark underwent physical and medication therapy, and received injections into her right supraspinatous and trapezius.
On December 11, 2000, Vicorp gave Clark notice that her 180-day leave of absence would expire on January 3, 2001, and if Clark was unable to return to work by then, her employment would be terminated. Thereafter, on December 22, 2000, after reviewing Clark’s functional assessment exam, Dr. Hillman released Clark for work with the following lifting restrictions: (1) ten pound individual; (2) extremity floor to chair twenty pound bilaterally; (3) five pound individual extremity above shoulder; and (4) ten pound bilateral above shoulder. Clark was further ordered to avoid repetitive kneeling, climbing, balance, and use of her upper extremities for greater than sixty-minute durations. Lastly, Clark was restricted to work no more than four hours daily for three weeks, adding two hours each week thereafter, and should stand nor sit for greater than thirty minute durations. Clark provided the restrictions to her supervisor at Vicorp on December 26, 2000. By letter dated January 3, 2001, Vicorp terminated Clark’s employment.
After her termination, Clark continued to see Dr. Hillman. Dr. Hillman kept her on light duty pending the completion of another functional capacity exam. On January 9, 2002, Clark received an independent medical examination from Dr. Justin Ban. Dr. Ban concluded Clark’s condition arose from her work activities on July 7, 2000. He opined Clark reached maximum medical improvement on March 14, 2001, and rated Clark as having a five-percent permanent partial disability rating resulting from sacroiliac sprain.
Before her termination from Vicorp, Clark was earning $8.75 per hour. She remained unemployed for approximately five months until she accepted a cashier position at McDonald’s where she earned $6.75 per hour. At the time of her eventual compensation hearing, Clark was earning $7.05 per hour.
Clark filed her petition for workers’ compensation benefits on November 28, 2000, against Vicorp and its insurer, Kemper Insurance Co. On August 8, 2002, the deputy workers’ compensation commissioner concluded Clark’s injuries arose out of and in the course of her employment with Vicorp on July 7, 2000. Clark was awarded 60 weeks of temporary total disability benefits at a rate of $173.97 per week, and medical expenses of $6130.73. The award was later amended from 60 to 35.857 benefit weeks. Clark filed a motion to reconsider arguing the deputy commissioner failed to address her entitlement to permanent partial disability benefits. The deputy commissioner’s decision was affirmed and adopted on appeal.
Thereafter, Clark filed her petition for judicial review on April 24, 2003, asking the court to award her permanent partial disability benefits. The court affirmed the deputy commissioner’s decision.
On appeal, Clark argues she “is entitled to an award for permanent disability-industrial disability for her compensable work injuries of July 7, 2000,” because her earning capacity was adversely affected by Vicorp’s termination of her employment.
II. Standard of Review
Our review under chapter 17A (2001) is for the correction of errors at law, not de novo. Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003). Our review is guided by Iowa Code section 17A.19(10). The district court, as well as this court, is bound by the commissioner’s factual findings if they are supported by substantial evidence. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). We consider all of the evidence in the record. Dawson v. Iowa Bd. of Med. Exam’rs, 654 N.W.2d 514, 518 (Iowa 2002). Evidence is not insubstantial merely because it would have supported contrary inferences. Wal — Mart Stores, 657 N.W.2d at 499. It is substantial when a reasonable mind could accept it as adequate to reach the same findings IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632 (Iowa 2000).
III. Industrial Disability
Industrial disability is measured by the employee’s loss of earning capacity. Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 14
(Iowa 1993). Factors to consider when assessing earning capacity include the claimant’s functional disability, age, education, qualifications, experience, and ability to engage in employment for which the claimant is fitted. Trade Prof’ls, Inc. v. Shriver, 661 N.W.2d 119, 123 (Iowa 2003). “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).
Clark, citing McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980), and Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980), argues she is entitled to permanent partial disability benefits resulting from Vicorp’s decision to terminate her employment. She asserts Vicorp took “action that [was] adverse to [her] earnings” when it refused to reemploy her after receiving her “permanent restrictions.” Vicorp argues the commissioner’s decision is supported by substantial evidence because Clark was unable to “demonstrate a permanent change in her ability to perform her job duties,” and Clark’s termination resulted from its 180-day leave of absence policy and not any perception that Clark would be unable to perform her duties in the future.
In awarding Clark temporary total disability benefits, the deputy commissioner found:
The next issue to determine is the extent of claimant’s condition. Again, the opinion of Dr. Hillman is accorded the greatest weight for the same reasons as stated in the previous paragraph. Dr. Hillman opined claimant’s condition was only a temporary aggravation of a preexisting condition. . . . She opined claimant would be at maximum medical improvement six weeks from March 20, 2001. However, claimant is requesting benefits only through March 14, 2001. It is the determination of this deputy that claimant sustained temporary total disability benefits from July 8, 2000, through March 14, 2001.
This decision was affirmed and adopted as a final agency action with the following additional analysis:
I cannot agree with the assertion in claimant’s appeal brief that the hearing deputy failed to address the issue of entitlement to permanent partial disability. After finding that claimant received a work injury, the hearing deputy stated as follows in the last unnumbered paragraph on page 6 of the arbitration decision, [t]he next issue to determine is the extent of claimant’s condition. Again, the opinion of Dr. Hillman is accorded the greatest weight for the same reasons as stated in the previous paragraph. Dr. Hillman opined claimant’s condition was only a temporary aggravation of a preexisting condition. . . .
Clearly, the deputy found that the injury did not result in any permanency. Given such a finding, the deputy properly concluded that claimant is not entitled to permanent disability benefits and went on to award only temporary total disability benefits. While claimant may disagree with Dr. Hillman and the hearing deputy, I do not.
After examining Clark on March 20, 2001, Dr. Hillman wrote, “I again would be willing to release [Clark] to any type of full duty based on the results of her functional capacity with those limitations.” Dr. Hillman’s notes, and the notes of the other physicians treating Clark, indicate that her injuries may have been temporary in nature. A temporary injury does not, however, preclude an award of permanent partial disability benefits. According to the holdings in Blacksmith and McSpadden, a claimant may be entitled to an award of permanent partial disability benefits without any finding of functional disability Blacksmith, 290 N.W.2d at 354; McSpadden, 288 N.W.2d at 192. In Blacksmith, a review-reopening case, the court found that even though the claimant could not prove an increased functional disability, the claimant incurred an increased industrial disability when his employer transferred him from a truck driving position to a dock job where he earned substantially less income Blacksmith, 290 N.W.2d at 350, 354. The court held:
This is the case of an employee who has no apparent functional impairment and who wants to work at the job he had before but is precluded from doing so because his employer believes the past injury disqualifies him, resulting in a palpable reduction in earning capacity.
Id. at 354.
In McSpadden, the court stated, “a defendant-employer’s refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability.” McSpadden, 288 N.W.2d at 192. The court went on to remand the case to the commissioner for consideration of the claimant’s inability to secure employment since his separation with defendant-employer Id. at 192-93.
As a reviewing court, our task is to “broadly and liberally apply [the agency’s] findings to uphold rather than to defeat the agency’s decision.” Al-Gharib, 604 N.W.2d at 632. With this premise in mind, the trial court affirmed the commissioner’s decision holding in part:
To recap, Respondent terminated Petitioner pursuant to company policy. Respondent’s company policy stipulated that the maximum amount of time on leave from the company is 180 days, and that a leave of absence beyond 180 days results in termination from employment. . . . Petitioner’s 180-day leave of absence culminated on January 3, 2001. Petitioner was released to return to work on December 22, 2000, but was released only to light duty work in conformance with work restrictions imposed by Dr. Hillman. Petitioner notified Respondent of said release on December 26, 2000. Nevertheless, Respondent did not accept Petitioner’s light duty release and terminated her on January 4, 2001, for failing to return to work within 180 days. . . . Respondent justified Petitioner’s termination on the basis that Petitioner had not yet reached maximum medical recovery, was thus restricted, and could not comport with required job functions. . . . In essence, then, Respondent fired Petitioner for not returning to work within 180 days since she could not perform all job requirements within 180 days.
In this context, Respondent’s termination of Petitioner did not reflect any perception on the part of Respondent that Petitioner would be inhibited from performing her job subsequent to the healing of her temporary condition. . . . There was thus no discernible permanent effect on Petitioner’s earning capacity, as Respondent communicated that once Petitioner was able to return to work she should contact her General Manager. . . . There simply lacks any evidence that there was animus on the part of Respondent to terminate Petitioner because of any perception that her restrictions were permanent in nature, or that she would be unable to perform her job once she reached maximum medical improvement.
We disagree.
On appeal, we are required to remand an agency’s decision “if the commissioner has rejected or disregarded material evidence without any stated reasons.” McSpadden, 288 N.W.2d at 186
(citing McDowell v. Town of Clarksville, 241 N.W.2d 904, 908-09
(Iowa 1976)). The commissioner’s decision in this case is devoid of any reference to Clark’s termination from Vicorp and the effect it may have had on her earning capacity. Obviously, an administrative agency cannot set out verbatim all the testimony in a case. McDowell, 241 N.W.2d at 908. However, we are concerned that under this particular record that the commissioner may have overlooked the evidence of Clark’s termination. See id. (remanding to commissioner to weigh and consider answers to interrogatories). Because reasonable minds could draw different inferences from the evidence of Clark’s termination, we conclude:
[R]emand is necessary so that this and other evidence relevant to determining claimant’s industrial disability may be reconsidered in light of the proper standards for determining disability or for a supplemental decision showing the reasons why all evidence bearing on claimant’s industrial disability, other than [Dr. Hillman’s] [records], was rejected.
Id. at 192-93. Accordingly, the decisions of the commissioner and trial court are reversed and remanded.
REVERSED AND REMANDED.