Helen L. Lampman v. Crystal Incorporated, and First Comp Insurance Company

IN THE COURT OF APPEALS OF IOWA

No. 14-1983
Filed August 5, 2015

HELEN L. LAMPMAN,
Petitioner-Appellant,

vs.

CRYSTAL INCORPORATED, and
FIRST COMP INSURANCE COMPANY,
Respondents-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,

Judge.

A worker who suffered a back injury on the job appeals the district court

order affirming the award of five percent industrial disability by the workers’

compensation commissioner. AFFIRMED.

Ryan T. Beattie of Beattie Law Firm, P.C., Des Moines, for appellant.

Sasha L. Monthei and Kent Smith of Scheldrup, Blades, Schrock, Smith,

Aranza P.C., Cedar Rapids, for appellees.

Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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TABOR, J.

Helen Lampman challenges a judicial review order affirming an award of

benefits by the workers’ compensation commissioner. After injuring her back

while lifting residents at the care center where she worked as a nursing assistant,

Lampman argued before the commission that she suffered permanent total

disability or, at a minimum, seventy percent industrial disability. The

commissioner found the medical evidence did not support Lampman’s

contentions and awarded her benefits based on five percent industrial disability.

On appeal Lampman contends the commissioner’s decision was not supported

by substantial evidence; was irrational, illogical, and wholly unjustifiable; and was

an abuse of discretion. Affording the proper deference to the agency’s findings,

we affirm the award of benefits.

I. Background Facts and Proceedings

Lampman began working for Regency Care Center in July 2008 as a

certified medication aide (CMA) and certified nursing assistant (CNA). As part of

her employment with Regency, Lampman was required to help residents in and

out of bed by lifting them and was required to lift residents to apply topical

medicines. Before the events that led to the workplace injury at issue, Lampman

received treatment for back pain in June 2007 and January 2009.1 In February

2009, Lampman sustained a non-work-related injury to her left knee after slipping

1
Lampman testified the January 2009 treatment was for a sore back she associated with
working double shifts at Regency. The parties stipulated to a cumulative workplace
injury with the ultimate event occurring on May 9, 2009. The 2007 treatment related to a
back injury sustained while working as a CNA at a different facility; Lampman testified, “I
just had some sore muscles, and I was back on the floor [working] the next day.”
 3

and falling on ice. Lampman was released by her doctor to return to work with

lifting restrictions in April 2009. While working at Regency, Lampman wore a

knee brace that prevented her from lifting residents using correct techniques.

Lampman testified at the agency hearing that she could feel her muscles pulling

in her lower back when she lifted patients while wearing the knee brace.

On May 9, 2009, Lampman was lifting a resident into bed when the

resident pulled Lampman down by her ponytail. Lampman went to the hospital

the next day with complaints of pain in her lower back and going down her legs.

Lutheran Hospital personnel prescribed her Naproxen and Vicodin and

administered a shot of tramadol; an opioid medication for moderate to

moderately severe pain. Regency fired Lampman on May 11, 2009.

Lampman received extensive medical treatment following her injury. On

May 14, 2009, Dr. John Prevo examined and x-rayed Lampman, diagnosing her

with low back pain. Dr. Prevo prescribed medications to Lampman and placed

her on modified duty at work.2 Dr. Prevo performed an MRI on Lampman’s spine

on May 15 and prescribed her a muscle relaxant. Four days later, Dr. Prevo

opined that Lampman did not need to be off work entirely, but he did not want her

lifting patients. On May 29, Dr. Prevo reviewed Lampman’s x-ray and noted

some age-appropriate joint disease for a forty-six-year-old woman and a disk

bulge at L4-5 and L5-S1. He continued the previous work restrictions and

administered a steroid shot. On June 3, Dr. Prevo ordered electromyogram

(EMG) and nerve conduction studies, which he believed would be normal, and

2
Lampman was placed on modified or restricted duties by several physicians, but she
has not been employed since she was terminated by Regency.
 4

noted Lampman might need pain management treatment. Dr. Prevo gave

Lampman pain medications and provided her with a transcutaneous electrical

nerve stimulation (TENS) unit for pain relief. On July 1, Dr. Prevo noted

Lampman’s pain was slowly improving. On July 8, Dr. Prevo reviewed

Lampman’s EMG and noted it was “fairly normal.” Dr. Prevo opined on July 20

that Lampman was “overall better.” Lampman received an epidural injection

performed by Dr. Christian Ledet on July 27. Dr. Prevo noted on August 3 that

Lampman was approaching maximum medical improvement (MMI).

On August 14, 2009, Lampman began to see Dr. Daniel Miller, who had

taken over Dr. Prevo’s practice, and he continued to prescribe her Vicodin;

Flexeril, a muscle relaxant; Naproxen; and the TENS unit. Dr. Miller believed

Lampman reached MMI on August 14, and opined on October 2 that Lampman

had “a permanent partial impairment of 1% to 2% of the lumbar back.” Dr. Miller

released Lampman from his care on October 2 without restrictions. Dr. Miller

also stated, “I do not think that she will get worse as she is not working. I am still

hopeful that with time that she will continue to improve . . . I did refill her Vicoden,

Naproxen, and Flexeril.”

Lampman underwent an independent medical examination (IME) on

October 16, 2009, performed by Dr. Robert Jones. He wrote in his evaluation

that Lampman’s past medical history included “a low back strain at the Altoona

Nursing Home but got over this.” The IME rated Lampman’s permanent

impairment at five percent, and stated “this problem will continue into the

indefinite future.” Dr. Robert Jones imposed restrictions of lifting no more than
 5

thirty pounds occasionally and fifteen pounds frequently and recommended

Lampman perform only the CMA duties of distributing medications rather than

the CNA duties of lifting patients.

In January 2010, Lampman saw her personal doctor, Mark Jones, for

assessment of her continuing back pain and to refill her medications. Dr. Jones

referred Lampman to Dan McGuire, an orthopedic surgeon. Dr. McGuire saw

Lampman in February and June of 2010, but noted he had “access to absolutely

none of her treatment records.” Dr. McGuire examined the MRI performed by Dr.

Prevo on May 15, 2009, and noted the beginning of degenerative

spondylolisthesis, a condition in which one vertebral body slips forward on top of

the vertebral body below it, a “little disk bulge;” and large facet joints. Dr.

McGuire saw Lampman again on June 21, 2010, and observed that her back

pain had worsened. Dr. McGuire arranged for Lampman to see Dr. Clay

Ransdell for pain management on July 1, 2010. Dr. McGuire prescribed

Lampman a cane and a walker and agreed she had sustained a five percent

permanent impairment. Dr. McGuire stated further that Lampman’s lifting

incident on May 9, 2009, was a substantial and primary cause of her back pain.

On November 3, 2011, Dr. McGuire wrote on a prehearing “residual functional

capacity questionnaire” that Lampman was “probably not” malingering.

Dr. Ransdell treated Lampman for pain from July to December of 2010.

Dr. Ransdell prescribed Lampman morphine, Flexeril, Naproxen, gabapentin,

and oxycodone. Dr. Ransdell stated in his deposition that he did not believe a

single traumatic event in 2009 could cause Lampman the level of continuing pain
 6

she complained of, but indicated lifting events could exacerbate an underlying

condition. Dr. Ransdell did not have access to Lampman’s medical records other

than those received from Dr. McGuire.

Regency requested Lampman undergo another IME with a doctor of its

choosing, David Boarini. Dr. Boarini examined Lampman on June 16, 2010, and

stated she “exhibits some obvious exaggerated pain behavior.” Dr. Boarini also

reviewed the May 15, 2009 MRI and stated he saw “some mild degenerative

changes and disk bulges but nothing of significance and nothing that looks

related to an injury.” Dr. Boarini further stated that “it is difficult to give a [MMI]

from her work injury but I would expect that all the effects of any back strain

would be entirely gone within two to three months.” Dr. Boarini observed

Lampman is “obviously not currently fit to do heavy work,” though he stated he

did not believe she had a permanent injury or permanent impairment.

On November 9, 2011, Lampman underwent a functional capacity

evaluation (FCE) by Dr. Mark Blankespoor who found that she should be placed

in the sedentary category of physical demand characteristics. Regency’s

attorney set up a two-day FCE for Lampman beginning March 14, 2012, which

Lampman did not attend.

Two vocational experts assessed Lampman’s abilities. In his January 27,

2011 report, Kent Jayne came to the conclusion “it is unlikely that any feasible

vocational rehabilitation plan would have a reasonable likelihood of success in

returning Ms. Lampman to competitive employability absent a radical increase in

her physical and cognitive capacities.” Lampman dropped out of eighth grade
 7

and obtained a GED in 1984. In her February 2, 2011 report, Lana Sellner

placed Lampman in the sedentary to medium strength category of physical

demand occupations. Sellner opined Lampman could work in various

occupations such as customer service, patient representative, call center

associate, and as a CMA.

Lampman filed a petition alleging a cumulative injury to her back and legs

with an injury date of May 9, 2009. On May 3, 2012, a deputy commissioner held

an arbitration hearing, assessing whether the work injury was the cause of any

permanent disability and the extent of Lampman’s entitlement to permanent

partial disability benefits under Iowa Code section 85.34(2)(u) (2011).

The deputy commissioner awarded Lampman permanent partial disability

benefits based on a five percent industrial disability. Lampman filed an appeal to

the commissioner who adopted as the final agency decision the portions of the

arbitration decision challenged on appeal. The commissioner found Lampman’s

testimony was not credible in regard to her level of pain.

Lampman sought judicial review on July 2, 2013. Lampman argued she

sustained a permanent total disability, or at least seventy percent industrial

disability due to the May 9, 2009 injury. The district court decided substantial

evidence supported the commissioner’s finding that Lampman was not credible

in her testimony regarding her level of pain. The district court found the

commissioner had based his award of five percent industrial disability solely on

Lampman’s physical restrictions. Because the commissioner failed to consider

all of the factors bearing on Lampman’s actual employability, the district court
 8

concluded the agency misapplied the law. The district court then reversed and

remanded with instructions to the agency to provide a proper analysis of why the

five percent industrial disability was appropriate.

On remand, the commissioner explained “this agency typically does not

get to the other factors of industrial disability when there is no physical or mental

impediment to engage in employment activity caused by a work injury.” Because

the commissioner found that “all of the doctors who opined that the work injury

resulted in permanent restrictions were given an incorrect history,” he was unable

to conclude the medical evidence supported the work injury caused any

permanent activity restrictions.

Because the commissioner did not credit Lampman’s testimony, or the

views of those doctors who found Lampman required permanent restrictions, or

the vocational experts’ opinions due to their foundation on Lampman’s

statements and the discredited doctors’ opinions, the commissioner concluded

he could have “reasonably reversed the arbitration decision and rejected any

award of permanent disability.” But the commissioner declined to do so.

Instead, the commissioner addressed the district court’s concerns as follows:

We have a middle aged woman with only a GED and a long history
of work in nursing. Simply the occurrence of this injury at her last
nursing job albeit a temporary injury, would alone likely have some
adverse impact on her employability . . . . However, this factor
alone does not warrant more than a five percent award absent
significant contribution of the work injury to a medical restriction on
employment.

Accordingly, the commissioner reaffirmed the arbitration decision.
 9

Lampman again sought judicial review, and the district court decided

substantial evidence supported the agency’s award of five percent industrial

disability. The district court also found the agency provided valid reasons for its

award, and explained its reasoning by referring to its original decision and facts

in the record. The district court thus found the agency decision was not the

product of illogical reasoning, was not irrational, and was not wholly unjustifiable.

Finally, the district court found the agency exercised its expertise within a

reasonable range of informed discretion, and that discretion was not based on

clearly untenable grounds or to an unreasonable extent. The district court

affirmed the agency decision and Lampman now appeals.

II. Standard of Review

Review of agency action is governed by Iowa Code section 17A.19(10)

(2013). Appellate courts and district courts both review for the correction of legal

error. Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 149-50 (Iowa 1996). If we

reach the same conclusion as the district court we affirm, if not we reverse.

Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002).

Under section 17A.19(10), we “shall reverse, modify, or grant other

appropriate relief” if we determine “that substantial rights of the person seeking

judicial relief have been prejudiced” because the agency decision “is not

supported by substantial evidence,” is “irrational, illogical, or wholly unjustifiable,”

or is “otherwise unreasonable, arbitrary, capricious, or an abuse of discretion.”

See Iowa Code § 17A.19(10)(f), (i), (l)-(n).
 10

We read the agency’s findings broadly and liberally with an eye to

upholding rather than defeating its decision. See IBP, Inc. v. Al-Gharib, 604

N.W.2d 621, 632 (Iowa 2000). We give deference to the commissioner’s

credibility determinations. Broadlawns Med. Ctr. v. Sanders, 792 N.W.2d 302,

306 (Iowa 2010).

III. Analysis

Injuries that result in permanent partial disability under Iowa Code section

85.34(2)(u)—such as back injuries—are compensated “as the reduction in the

employee’s earning capacity caused by the disability bears in relation to the

earning capacity that the employee possessed when the injury occurred.” We

refer to the reduction in earning capacity as “industrial disability.” Westling v.

Hormel Foods Corp., 810 N.W.2d 247, 253 (Iowa 2012). The reduction in

earning capacity “rests on a comparison of what the injured worker could earn

before the injury as compared to what the same person could earn after the

injury.” Second Injury Fund v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995).

Although physical impairment is important to consider, industrial disability does

not rest solely on this factor. Keystone Nursing Care Ctr. v. Craddock, 705

N.W.299, 306 (Iowa 2005). Other factors include age, intelligence, education,

qualifications, experience, and the effect of the injury on the worker’s ability to

obtain suitable work. See Nelson, 544 N.W.2d at 266.

On remand, the commissioner addressed the district court’s concerns by

considering Lampman’s age, education, work history, and the impact of her back

injury on her employability. But the commissioner expressed its consideration in
 11

just two sentences. A more thorough discussion of how these factors contributed

or did not contribute to Lampman’s level of industrial disability would have been

valuable to our analysis on appeal. We nonetheless acknowledge no guidelines

exist for establishing the weight to be given to each of the factors. Lithcote Co. v.

Ballenger, 471 N.W.2d 64, 68 (Iowa Ct. App. 1991). The commissioner may

draw upon prior experience and specialized knowledge to reach the agency’s

finding in regard to the degree of industrial disability. Id. In this case, the

commissioner emphasized the lack of permanent physical restrictions related to

Lampman’s work injury over other factors when determining the extent of her

industrial disability.

A. Substantial Evidence.

Lampman contends the agency’s decision to award five percent industrial

disability is factually flawed and not supported by substantial evidence. The

legislature defined “substantial evidence” as the quantity and quality of evidence

that would be deemed sufficient by a reasonable person to establish the fact at

issue. Iowa Code § 17A.19(10)(f)(1).

If the agency has been clearly vested with the authority to make findings

on a particular issue, we only disturb those findings when they are not supported

by substantial evidence in the record. Extent of disability is a question of fact

vested in the discretion of the workers’ compensation commissioner. Gits Mfg.

Co. v. Frank, 855 N.W.2d 195, 198-99 (Iowa 2014). We review only the findings

actually made, not those findings that could have been made. Cedar Rapids

Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa 2011) (evidence is not
 12

insubstantial just because another factfinder may have come to a different

conclusion). So while it is true that another factfinder may have concluded

Lampman suffered greater than a five percent industrial disability, our role is only

to review whether substantial evidence supports the existing award.

The commissioner decided any permanent restrictions on Lampman’s

work activity were not due to her May 2009 back injury. In reaching that

decision, the commissioner rejected the opinions of those doctors who believed

the work injury resulted in permanent restrictions because Lampman provided

them with an “incorrect history” of her back pain. But after considering that

Lampman was in her fifties, had no college degree, and most of her work

experience was as a nursing assistant, the commissioner determined the

temporary injury at her last CNA position would have “some adverse impact on

her employability.” Based on that determination, the commissioner set her

industrial disability at five percent.

We are not in a position to second-guess the commissioner’s credibility

findings or to reweigh the expert evidence received by the agency. Because the

record contains substantial evidence to support the commissioner’s factual

findings, we will not disturb the determination of five percent industrial disability.

B. Irrational, Illogical, or Wholly Unjustifiable.

Lampman next argues the agency decision is the product of reasoning so

illogical as to require reversal under section 17A.19(10)(i).

When an agency has been vested with the authority to find facts, it is also

vested with the authority to apply the law to those facts. Burton v. Hilltop Care
 13

Ctr., 813 N.W.2d 250, 265 (Iowa 2012). When an agency has been clearly

vested with the authority to apply law to fact, we will only disturb the agency’s

application if it is irrational, illogical, or wholly unjustifiable. Id. A decision is

irrational when it is not governed by reason, illogical when it is devoid of logic, or

unjustifiable when it has no foundation in fact or reason. Sherwin-Williams Co. v.

Iowa Dep’t of Revenue, 789 N.W.2d 417, 432 (Iowa 2010).

On remand, the commissioner explained why he determined Lampman’s

industrial disability was only five percent. Specifically, the commissioner

reasoned Lampman was not credible regarding her back pain related to the work

injury and to the extent that she provided inaccurate information to her doctors,

the commissioner discounted their opinions that she suffered permanent

restrictions caused by the back injury at Regency. The commissioner suggested

he would not have found any industrial disability except that her age, limited

education, and narrow work experience combined with the temporary back injury

to slightly reduce her earning capacity. The commissioner’s decision was

anchored in the facts and he justified his reasoning. We, like the district court,

conclude the commissioner’s determination was not illogical or irrational.

C. Abuse of Discretion.

Lampman also claims the commissioner’s finding of only five percent

industrial disability was an abuse of discretion requiring reversal under section

17A.19(10)(n). Abuse of discretion is synonymous with unreasonableness,

which has been defined as “action in the face of evidence as to which there is no

room for a difference of opinion among reasonable minds or not based on
 14

substantial evidence.” Frank v. Iowa Dep’t of Transp., 386 N.W.2d 86, 87 (Iowa

1986). Agency “discretion is abused when it is exercised on clearly untenable

grounds or to a clearly unreasonable extent.” Equal Access Corp. v. Utils. Bd.,

510 N.W.2d 147, 151 (Iowa 1993).

The evidence concerning the reduction in Lampman’s earning capacity

related to her work injury at Regency left room for a difference of opinion among

reasonable minds. On remand, the commissioner applied the correct legal

standard to what he found as credible evidence in the record. We reach the

same concision as the district court: the commissioner exercised the agency’s

considerable discretion within tenable grounds and to a reasonable extent.

AFFIRMED.