No. 5-762 / 05-0134Court of Appeals of Iowa.
Filed December 7, 2005
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Duane Smidt appeals the district court decision affirming the workers’ compensation commissioner’s denial of his request for benefits based on an injury to the body as a whole. AFFIRMED.
Max Schott of Max Schott Associates, P.C., Des Moines, for appellant.
Joseph Quinn of Nyemaster, Goode, West, Hansell O’Brien, P.C., Des Moines, for appellees.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
MAHAN, J.
I. Background Facts Proceedings
Duane Smidt began working for Telecommunications, Inc. (TCI) in 1993. Smidt’s job installing cable television in homes required him to work on ladders. In 1995 Smidt was diagnosed with plantar fibromatosis on his left foot, which is a growth or tumor on the bottom of the foot. The growth was removed, but soon returned, and a second surgery was performed. Smidt continued to have pain, and a third surgery was performed in June 1996 to release the medial plantar nerve.
As a result of his continuing foot problems, Smidt was advised that he could not return to working on a ladder. Smidt performed office work at TCI for a few months, but quit in October 1996 for a better paying job performing auto body repair work. Smidt’s new employer went out of business in 1997, and Smidt became a stay-at-home dad. Eventually Smidt obtained a part-time job performing auto body work.
Smidt reported to physicians that he continued to have pain in his foot, and a fourth surgery was performed in September 1997. Smidt’s pain and hypersensitivity in his left foot remained. He saw several physicians for pain relief, but did not meet with any success.
By 1999 Smidt was also reporting pain in his lower back and hip. Dr. Marc Hines diagnosed him with complex regional pain syndrome. Dr. Kenneth Pollack found no evidence of this syndrome and noted that Smidt’s back pain “could very likely be related to abnormal body mechanics from the chronic limping and weight transfer associated with . . . patient’s chronic foot pain.” Dr. William Boulden also determined that Smidt had mechanical back pain only, which he attributed to an incident in July 1999, when Smidt stepped into a hole at the Mason City race track. Dr. Boulden agreed Smidt did not have complex regional pain syndrome.
In August 2001 Dr. William Koenig concluded that Smidt’s back pain was most likely due to piriformis syndrome, which is a painful condition caused by the entrapment of the sciatic nerve by the piriformis muscle in the buttocks. Dr. Koenig believed the piriformis syndrome arose due to Smidt’s “persistent antalgic gait.” Dr. Pollack treated Smidt for piriformis syndrome and came to the conclusion that Smidt did not suffer from the syndrome.
Smidt filed a petition seeking workers’ compensation benefits. He alleged an injury to the body as a whole based on the theory that his foot pain caused his limp, and his limp caused complex regional pain syndrome and piriformis syndrome. At the administrative hearing, TCI produced a videotape of Smidt walking without a limp during May 2002.
The deputy workers’ compensation commissioner found there was insufficient evidence Smidt had a gait derangement, or limp. The deputy also found the incident at the race track was an intervening cause for Smidt’s back pain. The deputy concluded Smidt “failed to establish that he has sustained a whole body disability as a result of the work injury to his left foot on December 22, 1995.” Smidt was entitled to benefits based only on an injury to a scheduled member, his foot. The workers’ compensation commissioner adopted the deputy’s decision as the final agency action in this case.
Smidt filed a petition for judicial review. The district court concluded that based on the videotape there was substantial evidence in the record to show that Smidt did not have an injury to the body as a whole. The court also found that Smidt’s testimony about the July 1999 race track incident provided sufficient evidence of an intervening cause. Finally, the court found that while the commissioner had not specifically addressed the issue of whether Smidt suffered from complex regional pain syndrome, the commissioner impliedly rejected this contention by the conclusion in the case. Smidt appeals.
II. Standard of Review
Our review is governed by the Iowa Administrative Procedure Act. Iowa Code § 17A.20 (2003); Acuity Ins. v. Foreman, 684 N.W.2d 212, 216 (Iowa 2004). We review the district court’s decision by applying the standards of chapter 17A to the agency action to determine if our conclusions are the same as those reached by the district court. University of Iowa Hosps. Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004).
III. Piriformis Syndrome
Smidt contends that the commissioner’s conclusion that he did not suffer an injury to the body as a whole was not supported by substantial evidence. Smidt asserts that his 1995 foot injury is the cause of his current diagnosis of piriformis syndrome, and that he is entitled to industrial disability benefits instead of scheduled member benefits for an injury to his foot. Smidt claims that the videotape should not be considered conclusive evidence that he is able to walk without a limp. He states that he can stand about one-half hour before the pain starts, and that his pain level is lowest in the middle of the day, when the videotape was taken.
We may reverse, modify, or grant other relief if a party shows the agency’s action is “[b]ased 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). “Substantial evidence” is defined as:
[T]he 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); Clark v. Vicorp Restaurants, Inc., 696 N.W.2d 596, 603 (Iowa 2005). Factual findings regarding the award of benefits are within the commissioner’s discretion, and so we are bound by the commissioner’s findings of fact if they are supported by substantial evidence. Mycogen Seeds v. Sands, 686 N.W.2d 457, 464-65 (Iowa 2004).
In this case, there was conflicting expert testimony as to whether Smidt’s hip and back pain was caused by his foot injury. The medical experts disagreed as to whether Smidt suffered from piriformis syndrome. Even accepting the diagnosis of piriformis syndrome, there was a disagreement about whether it was caused by the foot injury. As the commissioner noted, Dr. Koenig’s medical opinion that Smidt’s piriformis syndrome was caused by his foot pain was based on the assumption that he had a limp that was causing an aggravation of the muscles in his buttock. The weight to be given an expert’s testimony may depend upon the accuracy of the facts relied upon by the expert. See Sherman v. Pella Corp., 576 N.W.2d 312, 321-22 (Iowa 1998).
The videotape was taken over a span of two days and does not show any limping, antalgic gait, or gait derangement. The videotape shows segments in the morning and evening, and shows Smidt on his feet for various lengths of time at the auto body shop where he worked part-time. Thus, the evidence did not support the medical opinion of Dr. Koenig that Smidt had a limp which was causing piriformis syndrome. Based on the evidence that Smidt was able to walk without a limp, the commissioner concluded that Smidt had failed to show he suffered an injury to his back or hip which was caused by his original work injury. We conclude the commissioner’s decision is supported by substantial evidence.
IV. Complex Regional Pain Syndrome
Smidt asserts that the commissioner failed to address his claim that his foot pain had caused him to develop complex regional pain syndrome, which is an injury to the body as a whole. He asks to have the case remanded to allow the commissioner to address this issue.
Although the commissioner did not specifically address this issue, Smidt did not seek a further ruling by the commissioner. We conclude Smidt failed to preserve this issue for our review. Issues must ordinarily be raised and decided below before we will decide them on appeal. See Hill v. Fleetguard, Inc., ___ N.W.2d ___, ___ (Iowa 2005); Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002). Because this issue has not been preserved, we will not address it on appeal.
We affirm the decision of the district court and the workers’ compensation commissioner.
AFFIRMED.