No. 3-230 / 02-1350Court of Appeals of Iowa.
Filed September 24, 2003
Appeal from the Iowa District Court forPolk County, Robert D. Wilson, Judge.
Employer and workers’ compensation carrier appeal from district court ruling upholding an agency review-reopening decision, which found employee to be permanently and totally disabled, and awarded additional benefits. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Joseph A. Quinn of Nyemaster, Goode, Voigts, West, Hansell
O’Brien, P.C., Des Moines, for appellants.
Steven C. Jayne, Des Moines, for appellee.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
ZIMMER, P.J.
Foreman Electric Hardware and its workers’ compensation carrier, Acuity Insurance, appeal from the district court ruling that affirmed an agency decision in favor of Darrell Foreman, which followed his petition for review-reopening of his arbitration award. The agency found that Foreman had become permanently and totally disabled, and awarded additional benefits. While we conclude there was substantial evidence before the agency to show a new or changed impairment, there was not substantial evidence showing that Foreman was permanently and totally disabled. We therefore reverse the agency’s disability finding and remand this matter to the agency for an assessment of Foreman’s industrial disability rating.
Background Facts and Proceedings. Darrell Foreman has owned and operated Foreman Electrical Hardware, an electrical, plumbing and heating business, since the 1960s. In 1987 Foreman suffered an on-the-job injury to his left hip, left knee and back, when he fell from a ladder. At a September 1991 arbitration hearing, the parties stipulated that Foreman had sustained a sixty percent industrial disability as a result of his 1987 injury. The stipulation contemplated that Foreman’s medical condition would remain “substantially stable.” It also acknowledged the future economic uncertainty of Foreman’s business, and the possibility that Foreman might need or want to seek outside employment.
In 1997 Foreman, then sixty years old, sought review-reopening of the original award. Although he was still managing Foreman Electrical full time,[1] still capable of running some of the heavy equipment, and earning roughly double what he had earned in 1991,[2] he complained of a severe reduction in his physical functioning. The deputy workers’ compensation commissioner, while recognizing that the deterioration of Foreman’s left knee, left hip and back were all anticipated at the time of the 1991 stipulation, found a new or changed condition based on the deterioration of Foreman’s right hip and knee.
Both Foreman and his wife had testified to the increase in Foreman’s pain, and the decrease in his physical functioning. The deputy was also presented with the records and deposition testimony of Dr. Neff, the physician who had treated Foreman for his 1987 injury. These included a December 1997 opinion that stated, in pertinent part:
[W]hen I look at the bone scan, there is increased uptake in the left hip compared with the right, although there are degenerative changes on both sides. Neither knee shows severe degenerative change.
We have known since his injury that at some point he will require left total hip arthroplasty. He has protected the left leg for some time, and following compression of the fracture, the left leg is shorter than the right. This results in an increased force being applied to the right leg over a prolonged period of time. . . .
In my opinion, the arthritis in his left hip has been substantially contributed to by the fracture. The pain and aching in his back has been substantially contributed to or caused by the compression fracture of L1, and the degenerative changes occurring in his right hip and knee are the result of a short left leg. When surgical treatment is warranted, these surgeries will be the result of this injury combined with time.
Focusing on the prospect of a right knee and hip replacement, the deputy found that Foreman’s “unanticipated present deteriorating condition makes it increasingly difficult to provide employment for himself, even in a management capacity. Certainly, independent work for another employer is not available in the competitive job market given claimant’s disability.” She determined that Foreman was permanently and totally disabled, and awarded further disability benefits. Upon agency appeal the chief deputy affirmed and adopted the deputy’s decision. Foreman Electric
Hardware and Acuity Insurance (collectively Acuity) then petitioned for judicial review. The district court upheld the agency action, finding substantial evidence supported the deputy’s decision. Acuity appeals.
Scope of Review. Review of agency actions is limited to correcting errors of law. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). We will uphold the agency’s ruling if it is supported by substantial evidence in the record, when that record is viewed as a whole. Iowa Code § 17A.19(10)(f) (2001). Evidence is substantial if a reasonable person could review the record, and reach the same conclusion as the agency. Grundmeyer v. Weyerhaeuser Co.,649 N.W.2d 744, 748 (Iowa 2002).
New or Changed Impairment. Acuity contends the agency erred when it found that Foreman had suffered, after the date of his initial award, a physical impairment proximately caused by his original injury. See Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980). In challenging this finding,Acuity does not appear to dispute that the physical condition of Foreman’s right side has deteriorated, or that this deterioration relates back to the original injury. In fact, a review of the record reveals substantial evidence in support of each conclusion. There was medical evidence, through Dr. Neff, of the arthritic deterioration of Foreman’s right side, attributable to Foreman’sshortened left leg, which related back to the 1987 injury. In addition, both Foreman and his wife testified to Foreman’s decreased physical functioning and right-side difficulties. See Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996) (“Lay witness testimony is both relevant and material upon the cause and extent of injury.”).
Instead, Acuity argues that the articulated basis for the deputy’s decision-right-side deterioration that will warrant future right knee and hip surgery-is not supported by the record. It contends that to the extent Foreman established some right-side arthritic deterioration, that deterioration was no more than that which was contemplated at the time of the 1991 stipulation. See E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 829 (Iowa 1994) (“[t]he question is whether . . . [the] worsened condition was not contemplated at the time of the original disability hearing”). The evidence on this issue is, admittedly, less than clear cut.
At the time of the 1991 stipulated arbitration decision, Dr. Neff had opined that, while Foreman had some arthritis in his right hip, it was “very early” and “as a direct result of his simple age.” At that time Dr. Neff did not contemplate any severe or significant problems with the right hip. He did acknowledge, however, that Foreman was placing stress on his right side by favoring his left side, and that the right hip might deteriorate at a “slightly more rapid rate than would have otherwise occurred had he not had the injury” on his left side. By the 1997 review-reopening proceeding, Dr. Neff noted not only increased degeneration to Foreman’s left side, but also degenerative changes in Foreman’s right hip and knee. He then stated, somewhat ambiguously, that any future surgical treatments would be caused by the original injuries, as affected by time.
We agree with Acuity that the record does not plainly demonstrate a substantial deterioration on Foreman’s right side, or the need for future right-side surgeries. Were we sitting as the fact finder in this matter, we might well decide in Acuity’s favor. However, the question is not whether the record supports a finding different from the agency’s, but whether it supports the finding the agency actually made. See 2800 Corp. v. Fernandez, 528 N.W.2d 124, 126 (Iowa 1995) (“[a]n agency’s decision does not lack substantial evidence because inconsistent conclusions may be drawn from the same evidence”). The agency, not the court, weighs the evidence. Ward v. Iowa Dep’t of Transp., 304 N.W.2d 236, 237 (Iowa 1981). Under this standard, the record substantially supports a conclusionthat the current level of right-side impairment is beyond that contemplated by the initial award.
Permanent and Total Disability. Acuity contends that, even if Foreman established a new or worsened physical condition, the finding of permanent and totally disability is unsupported in either fact or law. To answer this question we look towards the evidence of Foreman’s industrial disability, or loss of earning capacity. SeeMortimer v. Fruehauf Corp., 502 N.W.2d 12, 14 (Iowa 1993). The current level of Foreman’s functional disability is only one factor to be considered in making an industrial disability determination. Id. Other factors include Foreman’s age, education, experience, and inability to engage in employment for which he is suited. Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 435 (Iowa 1999). Accordingly, a person with only a partial functional disability can still be found to have a total industrial disability, if the combination of relevant factors precludes him from obtaining regular employment and earning a living. Second Injury Fund v. Shank, 516 N.W.2d 808, 815 (Iowa 1994).
The record does contain substantial evidence that Foreman’s right side had physically deteriorated, and that this deterioration contributed, at least in part, to an increasing limitation on Foreman’s physical activities. At the time of the review-reopening proceeding Foreman was also approaching retirement age. While the record did not speak to Foreman’s ability to obtain a similar position elsewhere in the community, such evidence would be of limited value in this unique context, where the employee has owned and operated his own company for well over thirty years, and continues to do so on a full-time or nearly full-time basis.
As recently articulated by our supreme court, “[t]he question is whether [the] work-related injury has `wholly disable[d] [Foreman] from performing work that [his] experience, training, intelligence, and physical capacities would otherwise permit [him] to perform.'” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 501 (Iowa 2003) (citing IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 633 (Iowa 2000)). Far from being unable to achieve gainful employment, Foreman, a skilled contractor, continued to act in an administrative or management capacity for his company, and was still able to perform limited physical tasks. At the time of the review-reopening proceeding, his income had not been impaired. On the contrary, he was earning substantially more than he had earned at either the time of the 1987 accident or 1991 award.
Under such a record, there was simply not substantial evidence that Foreman was precluded from earning a living. We therefore reverse the agency finding of permanent and total disability, and remand this matter to the agency for an assessment of the level of Foreman’s industrial disability.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Eisenhauer, J., concurs; Hecht, J. dissenting.
HECHT, J., (dissenting).
I respectfully dissent from the majority’s determination that, as a matter of law, Foreman is not permanently and totally disabled. Although the agency could have found on this record that Foreman has residual earning capacity, I do not believe it was compelled to do so. Although I acknowledge that Foreman continued after the arbitration award to perform certain services for the company he owned, and thereby increased his earnings, the question before the agency was whether there are jobs in the competitive labor market for which Foreman can compete. Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 815 (Iowa 1994) (“Simply put, the question is this: Are there jobs in the community that the employee can do for which the employee can realistically compete?”). Whether Foreman’s skills are transferable is a factual question to be decided by the commissioner. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 18 (Iowa 1997). Although it is possible that Foreman’s management skills were marketable in the competitive job market at the time of the hearing on his petition for review-reopening, the agency found otherwise on this record. Given the evidence tending to establish a post-award increase in Foreman’s physical impairment, I believe substantial evidence supports the agency’s factual determination that a sixty-year-old man with chronic back, bilateral hip, and bilateral leg pain cannot find work in the competitive job market. I would affirm the agency’s decision in all respects.