IN THE COURT OF APPEALS OF IOWA
No. 14-1467
Filed January 13, 2016
GLEESON CONSTRUCTORS AND ENGINEERS, LLC, and TRAVELERS
INDEMNITY CO. OF CONNECTICUT,
Respondents-Appellants,
vs.
JOE MADRIGAL,
Petitioner-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,
Judge.
An employer and its insurance carrier appeal from the district court order
affirming the workers’ compensation commissioner’s award of total disability
benefits to the petitioner. AFFIRMED.
Patrick V. Waldron and Jason W. Miller of Patterson Law Firm, L.L.P., Des
Moines, for appellants.
Chadwyn D. Cox of Reynolds & Kenline, P.C., Dubuque, for appellee.
Considered by Danilson, C.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.
Joe Madrigal injured his back on August 26, 2009, while working for
Gleeson Constructors and Engineers, LLC. The workers’ compensation
commissioner awarded total disability benefits against Gleeson and its insurer,
Travelers Indemnity Co. of Connecticut. Gleeson and Travelers have appealed
after the district court affirmed the commissioner’s award.
I. Background Facts
Madrigal was born in Mexico in May 1973, where he graduated from high
school. After high school he attended college for three semesters in Mexico and
studied electricity. Madrigal came to the United States in 1989 or 1990 and
became a United States citizen in 2006. An interpreter was used at the hearing
before the commission, but in some of the medical visits his wife, Maria, was the
only interpreter. At other medical visits the provider was a Spanish speaker or an
interpreter was used.
Madrigal has primarily worked at labor-intensive jobs. He began working
for Gleeson in 2007 and was working with concrete at a worksite in Dubuque
when he developed a pain in his low back. By midafternoon he took a restroom
break and had trouble getting off of the stool. Coworkers were needed to help
him get to the construction site office. As he explained it, his back “locked up.”
He was unable to work the rest of that day but continued to work at light duty with
Gleeson until he underwent surgery. In October 2009, he received an injection in
his back, but it did not help a great deal. He took medications and engaged in
physical therapy while he continued to work but quit in December 2009 when he
underwent surgery. He has not worked at Gleeson or elsewhere since the
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surgery. He has been examined and treated by multiple physicians and
therapists since the surgery, and their collective opinion is that the surgery was
successful and there remains no objective physical impairment to his back that
can be ascertained. Nevertheless, Madrigal reports that although there was
some relief as the result of the surgery, he still experiences periodic excruciating
back pain and frequent locking of his back. He testified that his pain extends
from his left buttock onto his heel and he has lost strength in his leg. He usually
uses a cane when walking. He recounts he can neither sit nor stand for
extended periods but must alternate between the two positions. He sleeps fitfully
and awakens frequently because of the pain and the uncontrollable jerking in his
left leg. He intermittently loses bladder control, and his activities are limited to
short periods of household work and short periods of driving an automobile.
Maria testified that he has had a personality change and frequently becomes
antisocial and does not join in activities with his two teenage children. The
reports of medical providers who have treated him indicate he is depressed and
has anger problems.
The pain and disability as set out above is subjective. No objective cause
has been determined as the source of the discomfort. Without a determined
cause or injury, further surgery would be of no value. The postoperative
treatment has been limited to physical therapy and medications. There is an
agreement among those who have examined and treated Madrigal that he needs
to become more active and further therapy is the only cure to his present
condition. There is also general agreement that Madrigal is experiencing pain
and because of his pain, his movements are limited and weight restrictions are
4
appropriate. It appears that the required remedial activity increases the pain to
the point that Madrigal considers it intolerable. He does find water therapy
tolerable and goes to a pool three times a week, but medical opinions in the
record state that water therapy is not enough to overcome his discomfort and
increase his mobility.
Medical reports indicate he has attained maximum medical improvement.
There is no dispute that the August 26 injury necessitated the operation and that
the pain that still exists relates to the injury or the operation. The dispute centers
around the degree of pain Madrigal continues to experience, how it impacts his
ability to work in a competitive labor force, and to what extent his pain and his
ability to work are the product of his inactivity, failure to do therapy, and
exaggeration.
The subjective nature of Madrigal’s complaints makes his credibility an
issue. Gleeson contends that Madrigal has a history of inaccurate medical
reporting. The inaccurate medical reports cluster around a preexisting liver
problem, apparently resulting from Madrigal’s previous battle with
mononucleosis, and Madrigal’s unsubstantiated belief that further surgery would
eliminate his pain. When treatment on his back commenced, Madrigal failed to
advise the medical providers of his liver problem. When liver problems were
detected, a provider conjectured that it had been created by the prescribed
medication. Thereafter, Madrigal and Maria insisted that medications were
having an adverse effect on his liver, although they were later assured by
medical personnel that it had no effect. Further surgery had been suggested by
medical providers, but a subsequent MRI did not show any continuing
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physiological problem resolvable by surgery. Madrigal and Maria at one point
told a treating physician that three other surgeons had recommended further
surgery, but it was discovered that the representation had been fabricated.
Apparently Madrigal was desperate for relief and hoped that surgery would be
the answer.
Gleeson also contends Madrigal has a history of attempting to avoid work.
The record indicates that over the course of his work history and previous to his
employment with Gleeson, Madrigal had on occasion requested time off for
medical reasons that were denied by his employer. He also made a disability
claim that was denied by an examining medical professional.
Gleeson also contends Madrigal is exaggerating the pain he experiences.
There were three functional capacity exams administered that were considered
invalid because of inconsistency in Madrigal’s responses, based in part on what
was considered invalid efforts or reporting on Madrigal’s behalf. Nevertheless,
there were tests that were considered to be valid that established Madrigal’s
inability to compete in the labor market. On December 15, 2011, Madrigal
underwent a functional capacity evaluation that the evaluator considered to be
valid. That test indicated Madrigal would be able to do appropriate light duty
work while experiencing back pain but his functions would be slower when the
pain elevated. The evaluator opined that Madrigal would be able to do
appropriate light-duty work but acknowledged it was only a two hour test that he
had administered and that it was possible that Madrigal could not work a full
eight-hour shift. A “hands on” employability assessment was undertaken in
August 2012 by Area Residential Care at the request of Iowa Vocational
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Rehabilitation Services. Madrigal was given a three-day light-duty temporary
part-time job at the care center. The assessment indicated Madrigal showed a
good work ethic, was motivated, followed directions, and stayed on task. The
conclusion of Area Residential Care, adopted by the Iowa Vocational
Rehabilitation Services, was that Madrigal had a genuine physical disability that
posed a barrier to competitive employment. Laughlin Management Vocational
Rehabilitation Specialists reviewed the relevant background information and the
medical restrictions that had been placed on Madrigal and opined that he
suffered a 98—100% loss of access to a transferable occupation. Lack of
English-speaking skills and computer skills greatly increased his lack of
employment opportunities.
Madrigal has applied at approximately twenty-five to thirty businesses for
employment and received a call-back from only two. He was disqualified on one
because of his lack of language skills and on the other because of his inability to
stand for extended periods of time.
Madrigal has attempted to obtain social security benefits because of his
physical condition on two different occasions but has been denied both times.
On December 6, 2011, a hearing was held to consider Madrigal’s social security
claim. The decision denying benefits was primarily based on functional capacity
exams that determined that Madrigal was unable to perform tasks for relevant
work, but he did have the ability to do light work such as the assembly of small
products, produce sorting, or acting as a cafeteria attendant.
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II. Error Preservation
An issue must be raised both before the commissioner and in the petition
for judicial review to the district court before error is considered to have been
preserved. Armstrong Tire & Rubber Co. v. Kuble, 312 N.W.2d 60, 64 (Iowa Ct.
App. 1981). The entitlement to disability benefits was raised at both levels. Error
has been preserved.
III. Scope of Review
In review of the district court’s decision, the standards of Iowa Code
chapter 17A (2013) are applicable. Second Injury Fund of Iowa v. Nelson, 544
N.W.2d 258, 264 (Iowa 1995). A commissioner’s disability determination
involves an application of law to the facts, and we will not disturb it unless the
commissioner’s decision is irrational, illogical, or wholly unjustified. Neal v.
Annett Holdings, Inc., 814 N.W.2d 512, 526 (Iowa 2012). The agency’s decision
may be reversed, modified, or remanded if not supported by substantial evidence
or affected by an error of law. Nelson, 544 N.W. 2d at 264.
IV. Discussion
Gleeson contends that the law as applied to the evidence does not
support the finding that Madrigal is permanently and totally disabled, and
therefore, its rights have been prejudiced by the agency’s decision. Gleeson also
contends that the agency placed the burden of mitigation on it and to do so was
irrational, illogical, and unjustifiable, and when the record is viewed as a whole,
substantial evidence does not support the finding Madrigal is permanently and
totally disabled.
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Industrial disability is not the same as functional disability but it includes
other factors which are to be considered such as age, education, work
experience, employer’s qualifications, intellectual, emotional, and physical and
other factors which may contribute to a loss of earning capacity. I.B.P., Inc. v. Al-
Gharib, 604 N.W.2d 621, 632-33 (Iowa 2000). Dr. John Kuhnlein did an
independent medical examination on January 24, 2012, and although critical of
Madrigal for not being more active, stated in his report,
The prognosis for complete symptom resolution appears to be nil.
The prognosis for unrestricted return to work appears to be nil. The
prognosis for return to work with appropriate accommodations
should be excellent but I will have to say it is guarded based on the
nonphysiologic behaviors in examination and the length of time he
has been off work.
Three of the examining or treating physicians, including Dr. Kuhnlein, opined
Madrigal was not a malingerer.
Dr. Kuhnlein’s medical evaluation, Madrigal’s “hands on” test as reported
by Area Residential Care and adopted by Iowa Vocational Rehabilitation
Services, and the Laughlin Management report were all finalized after the social
security hearing. Taken together, they verify a loss of earning capacity and the
conclusion that Madrigal was totally disabled.
The deputy commissioner in its arbitration decision had held that the
greater weight of the evidence of those who had done a vocational study had
concluded that Madrigal was not employable. On review, the commissioner
considered the deputy’s assertion to be error and noted that Madrigal’s and
Gleeson’s vocational consultants’ testing as to Madrigal’s ability to return to the
competitive labor market were in conflict. Gleeson contends the commissioner’s
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correction of the deputy’s finding meant that the commissioner had found
Madrigal had not established an inability to enter the labor force. That conflicting
evidence existed as to Madrigal’s employability does not establish substantial
evidence that unemployability did not exist. The commissioner acknowledged
the conflict but based its decision on the medical reports stating, “it is the medical
opinions as to restrictions on function and employability that are more persuasive
than the opinions of vocational experts.” The commissioner later stated, “[I]t is
concluded that claimant is presently disabled for work and his work injury totally
disabled him at the time of the arbitration hearing from performing work with his
experience, training, and physical capacity.” The record is replete with weight
and movement restrictions medical providers placed on Madrigal because of his
back pain. The commissioner’s conclusion that Madrigal is permanently and
totally disabled is not irrational, illogical, or wholly unjustified.
We are bound by the commissioner’s finding of facts supported by
substantial evidence. Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa
2004). Substantial evidence means “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 establishment
of that fact are understood to be serious and of great importance.” Iowa Code
§ 17A.19(10)(f)(1). Clearly, Madrigal’s physical condition is based on subjective
symptoms and Gleeson has attacked his credibility, but the court is not allowed
to re-determine the commissioner’s findings of credibility. See Arndt v. City of
LeClaire, 728 N.W.2d 389, 394-95 (Iowa 2007).
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At the end of the commissioner’s appeal decision, the commissioner
encouraged the defendants to adopt the suggestion of Dr. Kuhnlein to engage
Madrigal in aerobic activity and pain management, and help locate medically-
appropriate jobs. He further stated that Madrigal had not proven the
psychological component to his inability to overcome his pain and loss of function
but that active medical health treatment might be appropriate. Gleeson attacks
the commissioner’s comments as shifting the burden of mitigation onto it. The
medical reports frequently mentioned Madrigal’s depression and mental state.
The commissioner was only commenting that no responsibility had been placed
on Gleeson for Madrigal’s mental condition but was suggesting the likelihood of a
connection between Madrigal’s pain and his mental condition, and that
addressing the latter might affect the former. The commissioner did not order
Gleeson to mitigate Madrigal’s damage, and although he acknowledged
Madrigal’s mental health was not an issue, he suggested assistance with
Madrigal’s mental health might accelerate his recovery.
The commissioner’s conclusion that Madrigal is permanently and totally
disabled is not irrational, illogical, or unjustified based on the application of law to
facts. His decision is not contradictory and does not place the responsibility to
mitigate on the employer. Finally, when the record is viewed as a whole, there is
substantial evidence supporting the commissioner’s decision.
AFFIRMED.