IN THE COURT OF APPEALS OF IOWA
No. 14-0038
Filed November 13, 2014
ANDERSON NEWS and AMERICAN HOME ASSURANCE,
Plaintiff-Appellants,
vs.
JULIE REINS,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
The appellants appeal from a district court ruling on a petition for judicial
review of a workers’ compensation commissioner’s ruling affirming the
commissioner’s ruling in part and remanding it to the commissioner for further
consideration in part. AFFIRMED.
Stephen W. Spencer and Christopher S. Spencer of Peddicord, Wharton,
Spencer, Hook, Barron & Wegman, L.L.P., West Des Moines, for appellants.
Ryan T. Beattie of Beattie Law Firm, P.C., Des Moines, for appellee.
Considered by Potterfield, P.J., Mullins, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.
The appellants, Anderson News and American Home Insurance
(hereinafter referred to as the employer), have appealed from a district court
ruling on a petition for judicial review of a workers’ compensation commissioner’s
ruling affirming the commissioner’s ruling in part and remanding it to the
commissioner for further consideration.
I. Procedural Background
The respondent/appellee, Julie Reins (hereinafter referred to as the
claimant) was injured at work on July 15, 2005. She entered into an agreement
for settlement with the employer on June 15, 2009. The settlement provided the
claimant a healing benefit and permanent partial disability benefits for a twelve
percent loss in her earning capacity.
On October 1, 2010, the claimant filed a petition for review-reopening, and
a hearing was held November 16, 2011. At the hearing, the deputy
commissioner found the claimant had established a material change in conditions
since the settlement was finalized. An additional permanent partial impairment
was found, and additional benefits were awarded accordingly. The employer
was also ordered to pay past medical charges as submitted and future medical
expenses, including a high-yield MRI if ordered by Dr. Quenzer or another
authorized treating physician. An appeal and cross-appeal were filed and the
commissioner affirmed the deputy’s ruling.
The employer filed a petition for judicial review with the district court. The
district court affirmed the ruling allowing the review-reopening, denied the
additional disability award on the existing record because of a lack of a showing
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of a loss in earning capacity, and remanded it to the commissioner for a
determination of the claimant’s loss in earning capacity. The district court also
affirmed the award of an additional MRI if ordered by an authorized physician
and future medical benefits to the claimant. The employer has appealed.
II. Factual Background
The claimant was employed in the reorder department of Anderson News
at the time of the injury. A box that she was retrieving from a shelf was initially
caught, but came loose, hitting her in the shoulder. The injury resulted in surgery
to her shoulder performed by Dr. Quenzer on December 12, 2005. Dr. Quenzer
found maximum medical improvement (MMI) from the shoulder injury and
operation was reached on June 13, 2006.
The claimant obtained an independent medical examination from Dr.
Kirkland. Dr. Kirkland performed a second surgery in April 2008, and determined
the claimant had reached MMI on August 18, 2008, but suffered a ten percent
whole person impairment. Dr. Kirkland prescribed exercises, and the claimant
continued to complain of pain in her right shoulder.
The claimant retained employment with the employer, but because of her
concern that she could no longer lift, she was given a new position that consisted
primarily of data entry. She continued to work full-time and was earning $10.75
per hour when the company closed in February 2009. She was unemployed until
October 10, 2010, when she became re-employed by Data Vision, at a primarily
data-entry job paying $10.50 per hour.
The June 15, 2009 settlement was based on Dr. Kirkland’s report, and it
was stipulated that there were jobs at Anderson she would have difficulty
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performing. It was further stipulated that she had significant subjective
complaints and the possibility of further medical treatment existed. The claimant
was unemployed at the time of the settlement. The commissioner approved the
settlement agreement.
The claimant visited Dr. Kirkland on July 15, 2009, and complained of
continuing pain. The doctor told her that continuing with exercise was the only
way to eliminate the pain. Dr. Kirkland testified there was no change relative to
impairment of the claimant’s right shoulder since his report of August 18, 2008,
on which the settlement was based. He further testified there was no reason to
change the claimant’s impairment rating or her work restrictions. He stated that
to an extent the claimant had lost any range of motion, it could be corrected by
exercise. Dr. Quenzer had also examined the claimant after the settlement and,
apparently because of a loss of motion, stated that the claimant exhibited a four
percent increase of impairment to her upper extremity.
Dr. Basil examined the claimant in 2011. He had not examined her prior
to the 2009 agreement. Dr. Basil found a fourteen percent whole body
impairment and believed that there was some loss in the claimant’s range of
motion. Since Dr. Kirkland’s 2008 rating, both Dr. Quenzer and Dr. Basil thought
temporary work restrictions were appropriate. On June 10, 2010, Dr. Quenzer
ordered physical therapy, and the claimant presented herself twenty-four times
and was reported as giving good effort. On February 17, 2011, Dr. Quenzer
recommended a high-yield MRI of the claimant’s shoulder for the purpose of
determining whether a surgical option would be appropriate. In May 2011, he
withdrew the recommendation, but on October 4, 2011, he reinstated it.
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The employer has appealed, asserting as follows: (1) the finding that the
claimant had a substantial and material change in circumstances since the
agreement for settlement, thereby justifying a review-reopening, is not supported
by substantial evidence and was based on an improper legal standard; (2) even if
substantial and material changes have been established, additional industrial
loss has not been established; (3) the order to provide treatment in the form of a
high-yield MRI was contrary to the law and evidence; and (4) the order awarding
medical benefits is not supported by fact or law.
III. Scope of Review
The scope of review of an administrative agency is controlled by Iowa
Code section 17A.19 (2013). The commissioner’s legal findings are reviewed for
errors of law. Iowa Code § 17A.19(10)(b), (c). In acting on a review of an
agency’s action the court functions solely in an appellate capacity to correct
errors of law. IBP Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). The
findings of fact made by the commissioner are binding so long as they are
supported by substantial evidence. Excel Corp. v. Smithart, 654 N.W.2d 891,
896 (Iowa 2002). The court will reverse the application of law to fact if it is
irrational, illogical, or wholly unjustifiable. Lakeside Casino v. Blue, 743 N.W.2d
169, 173 (Iowa 2007).
IV. Preservation of Error
It is generally considered that the issue must be raised and ruled on by the
trial court for it to have been preserved for appeal. Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). All four issues were raised and ruled on by the
trial court, and therefore, error has been preserved. Other medical benefits were
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included in the petition for judicial review and future medical benefits were ruled
on by the district court, therefore, error has been preserved. The commissioner
awarded past medical benefits as submitted, but none in fact were submitted,
and the issue related to past medical benefits is moot.
V. Discussion
A. This is a review-reopening case. “In a proceeding to reopen an
award for payments or agreement for settlements . . ., inquiry shall be into
whether or not the condition of the employee warrants an end to, diminishment
of, or increase of compensation so awarded or agreed upon.” Iowa Code
§ 86.14(2). To prevail the claimant must prove by a preponderance of the
evidence that his or her current condition is proximately caused by the original
injury. Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999).
The amount of the claimant’s loss is determined by the condition as it exists at
the time without speculation about some future condition. Kohlhaas v. Hog Slat,
Inc., 777 N.W.2d 387, 392 (Iowa 2009). Once there has been an agreement,
absent an appeal and remand, the commission has no authority to review an
award based on the same or substantially same set of facts as previously
considered. Gosek v. Garmen & Stiles Co., 158 N.W.2d 731, 732 (Iowa 1968).
The dispute in this matter is as to the legal standard of the required
change and whether claimant has met that standard. Worsening of the
claimant’s physical condition is a way to satisfy the reopening requirement, but
the principles of res judicata still apply. Kohlhaas, 777 N.W.2d at 392-93. The
employer contends that there must be a “substantial” worsening of the claimant’s
condition to permit a review reopening. It relies on Kohlhaas for its position.
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Kohlhaas was concerned with whether the worsening condition must be a
condition not anticipated at the time of the original award. Id. at 391-92.
Kohlhaas eliminated the “not anticipated” requirement and sent the matter back
to the commissioner to consider whether there had been a worsening of the
claimant’s condition. Id. Kohlhaas did not state that a “substantial worsening” of
the claimant’s condition was required, but only a “worsening.” Id. at 392.
The commissioner did not apply an incorrect standard in determining
whether a review-reopening hearing could be held. The commissioner found a
worsening condition of the claimant’s physical condition. The commissioner’s
finding must be affirmed if supported by substantial evidence. Excel Corp., 654
N.W.2d at 896. “Substantial evidence means the quantity or 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). The commissioner’s finding that the claimant is
suffering from a worsening condition is supported both by her testimony and by
medical testimony. Substantial evidence supports the commissioner’s
determination. A review-reopening was appropriate.
B. The commissioner increased the claimant’s permanent partial
impairment to fifteen percent. The employer contends that the claimant did not
prove a lessening of her earning capacity. In a review-reopening procedure the
claimant has the burden to prove whether she has suffered an impairment of
earning capacity proximately caused by the original injury. See E.N.T. Assocs. v.
Collentine, 525 N.W.2d 827, 829 (Iowa 1994).
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The trial court found that the commissioner failed to explicitly consider
whether the claimant had suffered a loss of earning capacity that would warrant
an increase in the benefits, and remanded the matter to the commissioner for
such a determination. See Iowa Code § 17A.19(10) (providing one of the
resolutions available to the district court on judicial review is to remand to the
agency for further proceedings). The deputy commissioner’s ruling, approved by
the commissioner, contained the following comments:
Claimant has not shown any permanent work restriction
since the prior settlement. In addition, she has not shown an
adverse change in her economic condition . . . . She had been
relegated to doing data entry work instead of heavier book
inventory work, but that occurred prior to the agreement for
settlement. Today, she works full-time for Data Vision, so she has
not suffered any loss of earning since the prior settlement.
However, although claimant has not suffered an economic
change of condition, she has suffered some change in physical
condition . . . .
. . . Her economic condition has actually improved
considerably.
Industrial disability measures an injured worker’s lost earning capacity.
Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). The
commissioner’s language cited above made it difficult to imply or reach a finding
of lost earning capacity. The trial court’s remand to the commissioner to
determine whether lost earning capacity existed was appropriate. The claimant’s
“economic condition” and “earning capacity” are not necessarily synonymous.
The commissioner made no finding as to the claimant’s lost earning capacity to
support an increase of her permanent partial impairment.
C. The settlement agreement provided for future medical care that
resulted from the injury. The commissioner then held that the employer should
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pay for the future medical expenses necessitated by the work injury referring
directly to the high-yield MRI if Dr. Quenzer or another authorized physician
recommended it to be done. Both the commissioner and the trial court
considered the requested high-yield MRI as alternative care and not contingent
on the review-reopening procedure.
If an employer and employee cannot agree on the alternate care to be
provided, the matter can be submitted to the commissioner, and the agency may
grant on proof of its necessity. See Iowa Code § 85.27(4). The commissioner
found that the claimant’s continued shoulder pain and loss of motion was related
to the shoulder injury and that, if ordered by an authorized physician, the high-
yield MRI would be considered a necessity. Dr. Quinzer in his deposition
affirmed that he felt a high-yield MRI was an appropriate treatment. The
commissioner’s finding on the high-yield MRI as a future medical procedure is
supported by substantial evidence.
The decision of the trial court is in all aspects affirmed.
AFFIRMED.