Ryan Companies and Zurich North America, petitioners-appellants/cross-appellees v. Greg Bissell, respondent-appellee/cross-appellant.

IN THE COURT OF APPEALS OF IOWA

No. 13-1869
Filed August 13, 2014

RYAN COMPANIES and ZURICH
NORTH AMERICA,
Petitioners-Appellants/Cross-Appellees,

vs.

GREG BISSELL,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.

An employer appeals and an employee cross-appeals from a district court

ruling upholding a workers’ compensation award. AFFIRMED.

Sasha L. Monthei of Sheldrup, Blades, Schrock, Smith, and Aranza, P.C.,

Cedar Rapids, for appellants.

Jean Mauss of Schott, Mauss & Associates, P.L.L.C., Des Moines, for

appellee.

Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
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TABOR, J.

Employer Ryan Companies appeals from an adverse ruling by the district

court on its petition for judicial review from an award of workers’ compensation

benefits. The Iowa Workers’ Compensation Commissioner found carpenter Greg

Bissell injured his lower back in the course of his employment, Ryan had notice,

and Bissell lost one-hundred percent of his earning capacity as a result of the

injury. For the same reasons detailed in the thorough district court opinion, we

affirm the commissioner’s decision.

I. Background Facts and Proceedings

To frame the legal issues on appeal, we provide the following summary of

pertinent facts. For those facts in dispute, we rely on the deputy commissioner’s

findings, as he had the opportunity to assess witness credibility at the in-person

hearing. Arndt v. City of Le Claire, 728 N.W.2d 389, 395 (Iowa 2007).

Although his education was in accounting and psychology, Greg Bissell

pursued a career in the construction industry. He began working as a

journeyman carpenter for Ryan Companies on October 22, 2008. On October

23, 2008, Bissell—then forty-seven years old—was lifting a heavy panel of glass

when his back “popped.” After the injury, Bissell could not stand up straight and

relied on a co-worker to help him remove his tool belt and walk from the building.

A Ryan foreman, John Popson, asked if he needed an ambulance, but Bissell

declined—believing he aggravated a preexisting back problem.

Bissell tried to drive home, but experienced car trouble so his daughter

picked him up, leaving his tools at the site. She testified her father was in a great
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deal of discomfort, and it was unusual for him to leave his tools at the work site.

When Bissell arrived home, his wife insisted he seek medical treatment that

evening. They went to the emergency room at Mercy Medical Center. The

hospital intake notes report Bissell was experiencing significant back pain.1

“Lumbar area shoots pain down side of thigh and lower leg. Has had this pain

before just not this bad . . ., [s]tood up straight then almost fell to side as if right

leg gave out.”

Bissell called into work the next day to report his absence. The

receptionist said he did not need to make daily calls, but should contact the

company when he was well enough to return. Bissell returned to the job site a

few days later on crutches to retrieve his tools and collect his paycheck. Popson

recalled seeing Bissell having physical difficulties that day, but testified Bissell did

not report his injury.

Bissell admits he did not make an official report of his injury to Ryan. He

testified he did not think his treatment was covered under workers’ compensation

insurance. Bissell believed because his physical difficulty following the October

2008 lifting incident was not his first experience with pain in his lower back and

legs, the injury could not be compensated. Bissell had previously received

treatment for restless leg syndrome, a displaced lumbar disk, and degenerative

disk disease. Bissell’s pain management specialist, Dr. Dan Baldi, noted after a

1
The emergency room notes suggested Bissell reported the back pain had been
ongoing for four days, a fact Bissell denied. The deputy found Bissell credible on this
point.
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June 2008 consultation that Bissell’s medications were working well to control his

pain level.

Starting in October 2008, Bissell’s physical condition deteriorated

dramatically. On October 24, he visited both Mercy Clinic’s Arthritis and

Osteoporosis Center and Dr. Baldi’s office—reporting severe lower back pain.

He received lumbar facet injections on October 27, but did not gain much relief.

Bissell suffered increased pain and decreased strength over the next two years.

Bissell could not move about without a cane or crutches, and eventually started

using a wheelchair. Bissell also suffered “emotional fallout from his physical

disability” and began seeing a counselor who diagnosed him with mood disorder

and chronic adjustment disorder with depression and anxiety.

Bissell did not realize he had a compensable work injury until he consulted

with an attorney in March 2010 for the purpose of applying for social security

disability benefits. As part of his claim for social security benefits, Bissell

underwent a functional capacity examination by Dr. Tracey Larrison. Dr. Larrison

concluded Bissell would “not be able to adequately sustain a 40 hour work week

of any kind.” Dr. Baldi also opined sitting for periods of time at a sedentary job

would be difficult for Bissell.

On October 14, 2010, Bissell filed his petition with the workers’

compensation commissioner. Ryan engaged Dr. William Boulden to perform an

independent medical examination of Bissell. After viewing a 2008 MRI of

Bissell’s spine, and comparing those results to a 2006 MRI, Dr. Boulden

determined the October 23 injury was a new herniated disc, not an aggravation
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of a previous condition. Dr. Mitch Erickson, a neurologist, came to the same

conclusion.

Ryan hired Dr. Chad Abernathey in October 2011 to review Bissell’s

records. Without examining Bissell, Dr. Abernathey opined Bissell’s chronic low

back pain was not related to his work at Ryan, but rather his symptoms were

“compatible with [a] long standing pre-existing” condition.

A deputy workers’ compensation commissioner held an evidentiary

hearing on Bissell’s petition on January 4, 2012. In an arbitration decision issued

February 6, 2012, the deputy found Bissell suffered a new injury during the scope

of his employment on October 23, 2008. The deputy placed greater weight on

Bissell’s testimony and his medical evidence than on the evidence presented on

Ryan’s behalf. The deputy also decided Ryan had actual notice of Bissell’s

injury. Alternatively, the deputy decided the discovery rule applied to Bissell’s

situation. Finally, the deputy determined the injury resulted in a total loss of

earning capacity for Bissell and awarded the worker $682.19 a week in disability

compensation and $1875.74 in medical expenses.

Ryan appealed the decision to the commissioner, who affirmed and

adopted the arbitration decision in its entirety on March 28, 2013. Ryan then

asked for judicial review. On judicial review, Ryan argued (1) the agency erred in

finding Bissell sustained an injury to his lower back arising out of and in the

course of his employment; (2) Bissell’s claim was barred for failure to provide

Ryan notice; and (3) if Bissell’s injury was compensable, he did not suffer a total
 6

loss of earning capacity. The district court affirmed the agency’s action. Ryan

appeals.2

II. Scope and Standards of Review

In the judicial review proceedings, the district court acts in an appellate

capacity reviewing the commissioner’s decision to correct legal error. Mike

Brooks, Inc. v. House, 843 N.W.2d 885, 888 (Iowa 2014). On appeal, we apply

the standards of Iowa Code chapter 17A (2013) to decide if we reach the same

conclusion as the district court did. Id. at 889.

Whether Bissell’s injury was work related, whether the employer had

actual notice of the injury, and whether Bissell was permanently and totally

disabled are all questions of fact. The legislature vested the commissioner with

discretion to make determinations of fact. Id. “We are bound by the

commissioner’s factual determinations if they are supported by substantial

evidence in the record before the court when that record is viewed as a whole.”

Id. “‘Substantial evidence” is defined as “the 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.’”

Id. (quoting Iowa Code § 17A.19(10)(f)(1)). Evidence is not insubstantial just

because it may support a finding different from that made by the commissioner.

2
Bissell filed a cross-appeal from the district court’s rejection of the agency’s alternative
reliance on the discovery rule. The cross-appeal was not necessary. An appellee may
seek affirmance on a ground rejected by the district court as well as a ground which was
accepted. See Hamilton v. City of Urbandale, 291 N.W.2d 15, 17 (Iowa 1980). We will
address Bissell’s argument concerning the discovery rule below.
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Id. Our job is to see if substantial evidence supports the findings actually made.

Id.

Because Ryan’s challenge to the agency’s industrial disability

determination depends on the application of law to facts, we will not disturb that

decision unless it is “irrational, illogical, or wholly unjustifiable.” See Neal v.

Annett Holdings, Inc., 814 N.W.2d 512, 526 (Iowa 2012).

III. Assessment of Judicial Review Order

Ryan raises the same three arguments here as before the district court on

judicial review. First, the company argues the commissioner erred in finding

Bissell sustained an injury to his lower back arising out of and in the course of his

employment. Second, Ryan disputes that it had actual notice of Bissell’s injury.

Third, Ryan contends Bissell did not suffer a permanent total disability.

We find this case does not merit a full opinion to expound on the issues

presented. See Iowa Ct. R. 21.26(1). The district court identified and measured

all of Ryan’s claims. Id. We approve of the reasons given and conclusions

reached in the judicial review order, and opt to summarily explain our rationale as

follows.

Ryan accuses the deputy commissioner of “becoming a proponent for

Bissell.” To the contrary, the deputy commissioner performed his duty, as the

trier of fact, to gauge the credibility of witnesses. See City of Davenport v.

Newcomb, 820 N.W.2d 882, 888 (Iowa Ct. App. 2012). The deputy expressly

found Bissell and his family members to be credible based on their demeanor at

the hearing. Ryan also claims the “vast majority of medical evidence on this
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claim supports a finding that it was Bissell’s long history of a chronic low back

condition” and not a new injury which caused his pain. As he was free to do, the

deputy gave greater weight to the opinions of Drs. Boulden and Erickson than to

the opinion provided by Dr. Abernathey. We defer to the commissioner’s

credibility findings. Accordingly, we find substantial evidence to support the

agency’s conclusion that Bissell’s back injury result from his work for Ryan on

October 23, 2008.

Next, Ryan argues Bissell’s claim should be barred because he failed to

timely notify the company of his injury as required under Iowa Code section

85.23. Specifically, Ryan contends Bissell told company representatives the

lifting aggravated his preexisting back problem, rather than informing them of a

new injury. The commissioner decided Ryan had actual notice through Bissell’s

conversation with foreman Popson on the day of the injury and his call to the

receptionist to report his absence the next day. The commissioner alternatively

found Bissell did not “discover” his injury until he understood it was compensable

in May 2011.

The district court accepted the agency’s actual notice finding, but rejected

the discovery rule’s application. We agree on both counts. It is true an

employee may provide information to an employer, which would satisfy the actual

knowledge notice requirement without at the same time nullifying his right to

invoke the discovery rule. See Dillinger v. Sioux City, 368 N.W.2d 176, 180

(Iowa 1985). But under the facts of this case, after Bissell felt the “pop” in his

back while performing a work activity, he had a duty to investigate the
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compensable nature of his ensuing back pain. See Chapa v. John Deere

Ottumwa Works, 652 N.W.2d 187, 190 (Iowa 2002). As for actual notice, the

record supported the agency’s conclusion that Ryan officials were alerted to

Bissell’s injury through his contacts with foreman Popson and his call to the

company’s receptionist.

Finally, Ryan argues the award of permanent total disability benefits was

“unreasonable, arbitrary, capricious, or an abuse of discretion.” The assignment

of a percentage to a disability is based on numerous factors. See Simonson v.

Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1990). Ultimately, “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.” Quaker Oats Co. v. Ciha, 552 N.W.2d 143,

157 (Iowa 1996). The district court said it best in its opinion: “The [c]ourt’s inquiry

is limited to whether substantial evidence supports [the agency]’s conclusion, and

the [c]ourt finds that the opinions of Dr. Larrison and Dr. Baldi provided a

sufficient basis from which [the agency] could conclude that [Bissell] suffered a

100% loss of earning capacity due to the October 23, 2008 injury.”

After a careful review the record, the briefs of the parties, and the district

court’s well-reasoned ruling, we find substantial evidence supports the agency’s

award. In applying the deferential standards of review discussed above, we

endorse the rationale and results in the judicial review order. Further discussion

of the issues would be of no value. Iowa Ct. R. 21.26(1)(b), (d), and (e).

Accordingly, like the district court, we affirm the agency’s decision.

AFFIRMED.