No. 4-097 / 03-0188Court of Appeals of Iowa.
Filed March 10, 2004
Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.
Respondents appeal from the district court’s ruling on judicial review, reversing the workers’ compensation commissioner’s denial of Claimant’s petition for benefits. AFFIRMED.
Tonya Oetken and Steven Augspurger of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellant.
Jerry Jackson of Moranville Jackson, P.C., West Des Moines, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
EISENHAUER, J.
Respondents West Des Moines Community School District and EMC Insurance Companies appeal from the district court’s ruling on judicial review, reversing the workers’ compensation commissioner’s denial of Claimant Cara Glenn’s petition for benefits. Respondents contend the district court erred because substantial evidence supported the commissioner’s decision. We review this claim for errors at law. See IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001).
Glenn began her employment as bus driver with the West Des Moines School District on August 20, 1998. As a bus driver, Glenn was required to operate the bus’s door approximately ninety to one-hundred times per day. The door did not operate smoothly and required considerable force to open and close. After three weeks on the job, Glenn noticed her right hand was sore and tender. Her condition worsened in the following weeks to the point her mobility was impaired. She then reported her condition to her supervisor and was referred to Dr. Wesley Brown, the school district’s physician.
Dr. Brown diagnosed Glenn with right wrist tendonitis and prescribed ice and a splint, as well as the drug Naprosyn. When her symptoms failed to improve, Glenn was referred to Dr. Douglas Reagan, an orthopedic surgeon who specializes in conditions of the hand. Dr. Reagan diagnosed Glenn with Kienbock’s disease and recommended surgery.
Dr. Reagan believed Kienbock’s disease had been causing changes to the bone in Glenn’s right hand for approximately one to two years. He opined that although her symptoms manifested themselves while using her hand more during her employment with the West Des Moines School District, the symptoms probably would have developed at the same time regardless of whether she worked as a bus driver or at home. Dr. Regan believed that while her job aggravated the condition, at some point anything would have aggravated it and surgery would have been required regardless of her job duties. On this basis, Dr. Reagan found it difficult to believe Glenn’s injury was work related.
In December 2001, Glenn was evaluated by Dr. Justin Ban, a certified, independent medical examiner. Dr. Ban opined that the work injury did not cause any permanent impairment, but it did contribute to, or materially or permanently aggravate the Kienbock’s disease, thereby causing or contributing to a permanent impairment. Although Dr. Ban agreed Glenn’s condition would have eventually required surgery, he believed it would have been many years in the future if she had not engaged in work requiring forceful use of her right hand.
Glenn filed a petition seeking workers’ compensation benefits for twelve percent permanent partial disability of her right arm, healing period compensation from March 5, 1999 though August 1, 1999, and medical costs. Glenn asserted her injury was an aggravation of a preexisting condition. The workers’ compensation commissioner rejected her claim, concluding:
I find that Cara did not have significant symptoms in her right hand prior to the time she began driving the bus for West Des Moines Community School District. She did, however, have the Kienbock’s disease that was ongoing and progressing. Her previous work history does not show her to have engaged in any activity that would have likely placed any significant amount of stress upon her right hand. Cara’s work as a bus driver did place significant stress on her right hand from the procedure used in opening and closing the door as she described at the hearing. As a result of performing that procedure, Cara’s right hand and Kienbock’s disease became symptomatic. It is unlikely that her hand would have become symptomatic at that time if she had not engaged in forceful use of the hand. I find that the use of Cara’s hand caused her preexisting Kienbock’s disease to become symptomatic. I find nothing in the evidence which establishes that the activity caused the underlying, latent disease or the results of the disease to progress or worsen. The work merely caused the disease to become manifested and receive the medical care it would eventually need. Dr. Reagan’s assessment is therefore found to be correct. The work merely revealed the presence of Kienbock’s disease.
On judicial review, the district court found the commissioner’s conclusion that Glenn’s work did not cause the Kienbock’s disease or the results of the disease to progress or worsen was not supported by substantial evidence. The court noted both doctors agreed (1) Glenn had no symptoms prior to driving the bus, and (2) the repetitive use of Glenn’s right hand aggravated her preexisting condition. The court further cited the commissioner’s own finding that “[i]t is unlikely that her hand would have become symptomatic at that time if she had not engaged in forceful use of the hand.”
Employers take employees as they find them. Bearce v. FMC Corp., 465 N.W.2d 531, 536 (Iowa 1991). As a result, if a subsequent condition aggravates a preexisting condition rendering the condition disabling, the employer is liable for the disability. Id.
It is a well-established principle in workmen’s compensation law if a claimant had a preexisting condition or disability, aggravated, accelerated, worsened or “lighted up” by an injury which arose out of and in the course of employment resulting in a disability found to exist, he would be accordingly entitled to compensation.
Dep’t. of Transp. v. Van Cannon, 459 N.W.2d 900, 904 (Iowa Ct. App. 1990). The commissioner found Glenn’s work caused her preexisting condition to manifest. He acknowledged Glenn was asymptomatic prior to the start of her employment with the West Des Moines School District. He also found she would not have become symptomatic at that time without forcefully using her hand, as she did in her employment as a bus driver. The commissioner’s conclusion that Glenn’s injury is not compensable because Glenn’s work activity did not cause the underlying, latent disease or the results of the disease to progress or worsen is an error at law. Accordingly, the district court properly reversed the commissioner’s ruling and remanded it for determination of the appropriate award of benefits.
AFFIRMED.
Vaitheswaran, J., concurs; Sackett, C.J., dissents.
SACKETT, C.J. (dissents)
I respectfully dissent. The majority agrees with the district court’s determination the agency’s decision was not supported by substantial evidence in the record as a whole. I believe the district court misapplied the law and should be reversed.
The standard of review of decisions of administrative agencies is well-settled. We review an agency’s decision for errors of law and not de novo. Kostelac v. Feldman’s, Inc., 497 N.W.2d 853, 856 (Iowa 1993). The agency’s findings carry the effect of a jury verdict. Id. We will reverse an agency’s findings only if, after reviewing the record as a whole, we determine substantial evidence does not support them. Iowa Code § 17A.19(10) (2001) Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995). Evidence is substantial if a reasonable mind would accept it as adequate to reach the conclusion at issue. Kostelac, 497 N.W.2d at 856. The mere fact inconsistent conclusions could be drawn from the same evidence does not mean that substantial evidence does not support the agency’s determination. Id. The ultimate question is not whether the evidence supports a different finding but whether it supports the findings the agency actually made. Terwilliger, 529 N.W.2d at 271
All agree the claimant’s preexisting condition was asymptomatic prior to her work as a school bus driver and that the stress of opening and closing the bus door caused the underlying Kienbock’s disease to become symptomatic.
It is a well-established principle in workmen’s compensation law if a claimant had a preexisting condition or disability, aggravated, accelerated, worsened or “lighted up” by an injury which arose out of and in the course of employment resulting in a disability found to exist, he would be accordingly entitled to compensation.
Iowa Dep’t of Transp. v. Van Cannon, 459 N.W.2d 900, 903
(Iowa Ct.App. 1990) (emphasis added).
However, a disease which under any rational work is likely to progress so as to finally disable an employee does not become a “personal injury” under our Workmen’s Compensation Act merely because it reaches a point of disablement while work for an employer is being pursued. It is only when there is a direct causal connection between exertion of the employment and the injury that a compensation award can be made. The question is whether the diseased condition was the cause, or whether the employment was a proximate contributing cause.
Musselman v. Central Tel. Co., 261 Iowa 352, 360, 154 N.W.2d 128, 132 (1967). The agency decision noted:
The evidence in this case fails to prove by a preponderance of the evidence that the work Cara performed as a school bus driver materially aggravated, accelerated, worsened, or lighted up her underlying condition to the point that it caused disability. The evidence more convincingly shows that the work merely provided a setting in which the preexisting condition became manifest. In making this determination it is significant that the extent of the trauma was relatively mild and Cara had been performing the job for only approximately three weeks when she developed symptoms. . . . For an aggravation type of injury to be compensable, the aggravation must in some manner alter the course of the underlying, preexisting condition. A compensable aggravation must be something more than a set of circumstances that merely provides a setting in which the existence and characteristics of the underlying condition are exposed. . . . That is precisely what occurred in this case. The work simply caused the existence of the Kienbock’s disease to be revealed.
(Emphasis added; citation omitted).
The agency correctly determined there was no injury resulting in a disability merely because the work revealed the presence of the underlying, preexisting degenerative disease. I believe the district court reads the law too broadly in concluding the mere onset of symptoms qualifies as aggravation, acceleration, worsening or lighting up the condition resulting in a disability. The claimant had the disability which required surgery prior to her employment, but did not know it. All the stresses of work did was reveal the disability. I would reverse the district court and affirm the agency’s decision not to award benefits.