IN THE SUPREME COURT OF IOWA
No. 10–0795
Filed February 10, 2012
DONALD A. WESTLING,
Appellant,
vs.
HORMEL FOODS CORPORATION,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Carla T.
Schemmel, Judge.
A worker appeals a decision of the workers’ compensation
commissioner finding that the worker’s claimed disability was not caused
by a work-related injury. DECISION OF COURT OF APPEALS AND
JUDGMENT OF THE DISTRICT COURT AFFIRMED.
Mark S. Soldat of Soldat & Parrish-Sams, P.L.C., West Des Moines,
for appellant.
Valerie A. Landis of Hopkins & Huebner, P.C., Des Moines, for
appellee.
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WIGGINS, Justice.
In this appeal, we must decide whether the workers’ compensation
commissioner correctly decided that a worker failed to prove his claimed
disability was causally related to a work injury. Because an award for
partial permanent disability for an unscheduled injury under Iowa Code
section 85.34(2)(u) (2005) is determined by industrial disability, rather
than by functional impairment, the commissioner used the correct
standard to determine the causal relation between the work injury and
the alleged disability. Furthermore, substantial evidence supports the
commissioner’s findings. Thus, we affirm the decision of the court of
appeals and the judgment of the district court.
I. Background Facts and Proceedings.
At the time of his arbitration hearing, Donald A. Westling was fifty-
nine years old. He is a high-school graduate and worked for Hormel
Foods Corporation for thirty years and one day before voluntarily retiring
on November 24, 2006. On January 5, 2006, Westling experienced a
sharp pain in his right shoulder while removing casings from meat
products using a strip-out machine. In addition, Westling experienced a
burning sensation and could not lift his arms above his head. He
continued to experience pain while he worked.
On February 16, Westling saw Dr. Ryan J. Thoreson, who
diagnosed his injury as a rotator cuff strain. After physical therapy did
not alleviate Westling’s pain, Westling saw Dr. Philip A. Deffer, an
orthopaedic surgeon, on March 31. After an MRI exam suggested
Westling had a partial rotator cuff tear, Dr. Deffer referred Westling to
Dr. Jason C. Hough for surgery.
Dr. Hough performed arthroscopic surgery on Westling’s right
shoulder on July 10. During the surgery, Dr. Hough discovered
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significant fraying of the anterior and superior labrum as well as a large
spur along the acromion. He also noted inflammation along the
subscapularis muscle. Dr. Hough did not discover a rotator cuff tear.
Dr. Hough removed the frayed labrum, part of the membrane covering
the acromion, the anterior acromion hook to the acromioclavicular joint,
and part of the subacromial bursa. He also freed the spur.
One week later at his follow-up appointment, Westling reported
that he was “doing quite well.” Dr. Hough referred Westling to physical
therapy and told him to take four weeks off from work. Westling steadily
improved following the surgery, and one month after surgery, Westling
reported to his physical therapist that he did not have much pain. In
mid-August, Dr. Hough allowed Westling to return to full-duty work for
half of each day and light duty for the remainder. In mid-September,
Dr. Hough released Westling to full-duty work with no restrictions.
Although Westling’s condition had improved, he still experienced a
burning sensation and pain when he extended his right arm over his
head or performed pushing or pulling motions.
On October 12, Dr. Hough wrote to a Hormel representative
regarding Westling’s shoulder. Dr. Hough expressed his opinion that the
surgery did not cause Westling to have a permanent impairment. He
wrote,
In regard to Donald Westling’s shoulder, I do not believe that
he will have any permanent impairment secondary to his
surgical intervention. I believe that he has done quite well
and he should not have any impairment secondary to this.
Westling retired on November 24. No doctor advised him to retire,
and he did so voluntarily. After retiring, Westling divided his time
between Iowa and Florida and did not look for other permanent
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employment, although he occasionally painted a house or mowed his
neighbor’s lawn in exchange for money.
On March 15, 2007, Westling filed a petition with the Iowa
workers’ compensation commissioner. Westling alleged he suffered the
injury to his shoulder while working at Hormel and that “[c]umulatively
and gradually, overuse syndrome developed into an impingement
syndrome” resulting in permanent disability. Hormel admitted Westling
sustained a work-related injury on January 5, 2006, which caused a
temporary disability, but disputed that Westling’s injury caused a
permanent disability.
On April 9, 2008, at Westling’s request, Dr. Mary A. Shook
performed an independent medical examination of Westling’s shoulders.
Westling reported to Dr. Shook that his pain level was an eight on a ten-
point scale. In her report, Dr. Shook attributed Westling’s then-current
pain in his right shoulder to arthritis and not overuse. She also opined
that any pain in Westling’s left shoulder was probably related to arthritis
and not stemming from overuse during his employment at Hormel.
Dr. Shook explained,
Review of records referring to the right shoulder indicates
arthritis diagnosed at the time of surgery. It is even noted
that a rotator cuff tear had healed . . . . Arthritis is also
noted in the knees and neck. I suspect arthritis is present in
the left shoulder as well. Although Hormel is noted to be a
physically demanding workplace, the patient describes a
number of jobs he has been assigned to, not the same job
over a number of years. Review of records also indicates
many months of limited duty or no duty related to injury
care and recuperation from surgical procedures . . . .
Repetitive motion injury because of work assignments is best
diagnosed in relationship to actual tasks performed. Since
Mr. Westling retired in November, 2006 there has been no
recent repetitive motion at the workplace. Thus I can safely
conclude that his current symptoms are NOT from repetitive
tasks due to work assignments. Any current exacerbation of
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pain in the shoulders would more likely be related to recent
use not prior work use. Arthritis causes increased pain and
decreased function over time. With a reasonable degree of
medical certainty, his current shoulder complaints are due
to arthritis, not cumulative trauma.
Using range of motion as the criteria, Dr. Shook evaluated Westling
as having two percent whole person impairment for the right shoulder
and three percent whole person impairment for the left shoulder, both
caused by arthritis and not Westling’s work activities. Dr. Shook rated
Westling’s impairment in accordance with the fifth edition of the
American Medical Association’s Guides to the Evaluation of Permanent
Impairment.
Following an arbitration hearing in September, the deputy workers’
compensation commissioner determined Westling failed to establish “a
causal relationship between his January 5, 2006 injury and his claimed
permanent disability.” The deputy commissioner credited Dr. Hough’s
opinion that Westling did not have any permanent impairment of his
right shoulder because of the surgery and Dr. Shook’s opinion that
Westling did not have any permanent impairment because of overuse
while working for Hormel. On appeal, the commissioner affirmed and
adopted the deputy’s decision.
Westling sought rehearing, arguing the commissioner needed to
decide “whether for the purposes of Iowa Code section 85.34(2), the
definition of permanent impairment contained in the A.M.A. Guides to the
Evaluation of Permanent Impairment, was synonymous with the judicial
definition of functional disability.” In denying Westling’s request for
rehearing, the commissioner stated,
While claimant cites numerous errors alleged in the agency
decision, he more particularly cited to the need for the
agency to address its definition of impairment. The core of
claimant’s argument is that it was in error for the agency to
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determine he had sustained no permanent impairment
despite the surgical procedure of July 10, 2006, a procedure
that claimant describes in near-complete detail. Claimant’s
argument that such a procedure would result in some
impairment, however minor, is persuasive.
Nevertheless, the commissioner found that
[t]he presiding deputy, and the undersigned on appeal, relied
upon undisputed medical evidence that claimant’s work was
not a cause of a permanent bilateral shoulder condition. The
medical opinions were convincing and supported the
conclusion that claimant had not sustained permanent
impairment or disability resulting from his work. Claimant
failed to provide sufficient proof of permanent impairment,
despite a persuasive argument upon the limited proof
included in the record of this case.
The commissioner concluded Westling failed to establish either a
permanent physical impairment or permanent disability caused by the
January 5, 2006 injury.
Westling filed a petition for judicial review. The district court saw
some merit in Westling’s argument that the surgery may have resulted in
some permanent impairment under the Guides’ definition of impairment,
but concluded the commissioner did not make an error of law in making
a contrary finding. The district court noted the opinions of Drs. Shook
and Hough were “uncontroverted, well-supported medical evidence . . .
that Westling’s work-related injury and resultant surgery was not a
cause of a permanent impairment or disability.”
The court of appeals affirmed the district court and the
commissioner. Westling requested further review, which we granted.
II. Scope of Review.
We review an appeal of a workers’ compensation decision under
the standards set forth in chapter 17A of the Iowa Code. Xenia Rural
Water Dist. v. Vegors, 786 N.W.2d 250, 252 (Iowa 2010). We apply the
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standards “to determine whether the conclusions we reach are the same
as those of the district court.” Andover Volunteer Fire Dep’t v. Grinnell
Mut. Reins. Co., 787 N.W.2d 75, 79 (Iowa 2010). If we reach the same
conclusion as the district court, we affirm, but if we reach a different
conclusion, we reverse. Id.
We defer to the agency’s interpretation of a statute when the
legislature has clearly vested the agency with the authority to interpret a
statute. Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8, 11 (Iowa
2010). When the legislature has clearly vested the agency with such
authority, we “will only reverse a decision of statutory construction which
is irrational, illogical, or wholly unjustifiable.” Xenia, 786 N.W.2d at 252;
see also Iowa Code § 17A.19(10)(l). If, however, the agency has not
clearly been vested with such authority, we review questions of statutory
interpretation for correction of errors at law. Xenia, 786 N.W.2d at 252;
see also Iowa Code § 17A.19(10)(c).
In this case, we are reviewing the commissioner’s interpretation of
Iowa Code section 85.34(2), which deals with permanent partial disability
compensation. An examination of chapter 85 does not reveal any basis
for concluding that the legislature clearly vested the workers’
compensation commissioner with authority to interpret the subsection at
issue. Therefore, we review the commissioner’s statutory interpretation
for correction of errors at law. See Iowa Code § 17A.19(10)(c).
When a claim is made that the commissioner’s decision is not
based upon substantial evidence, we must determine if a factual
determination made by the commissioner “is not supported by
substantial evidence in the record before the court when that record is
viewed as a whole.” Id. § 17A.19(10)(f). Merely because we may draw
different conclusions from the record does not mean the evidence is
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insubstantial. Arndt v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa
2007).
III. Discussion and Analysis.
A. Determining Permanent Disabilities Generally. Westling
contends that the commissioner erred in finding no physical impairment
resulted from the injury in this case and that this erroneous finding also
rendered erroneous the determination that no permanent disability
resulted. Westling notes the definition of permanent impairment in the
Guides includes permanent derangement of bodily structures.
Contending it is indisputable that the agency record established his
shoulder surgery resulted in permanent derangement of the structures in
and around his shoulder, Westling posits the commissioner could not
find, on this record, that no permanent physical impairment resulted
from the injury.
Iowa Code section 85.34 governs the award of compensation for
permanent disabilities. Specifically, section 85.34(2) governs
compensation for permanent partial disabilities. Sections 85.34(2)(a)
through (t) govern permanent partial disability payments for scheduled
injuries. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 653 (Iowa 2000).
The commissioner determines the compensation for scheduled injuries
based on the impairment of an injured worker’s body function. Mortimer
v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993). In making this
determination, the commission’s rules allow the commissioner to use the
Guides. Iowa Admin. Code r. 876—2.4. The rule states:
The Guides to the Evaluation of Permanent
Impairment, Fifth Edition, published by the American
Medical Association are adopted as a guide for determining
permanent partial disabilities under Iowa Code section
85.34(2) “a” to “s.” The extent of loss or percentage of
permanent impairment may be determined by use of the
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Fifth Edition of the guides and payment of weekly
compensation for permanent partial scheduled injuries made
accordingly. Payment so made shall be recognized by the
workers’ compensation commissioner as a prima facie
showing of compliance by the employer or insurance carrier
with the foregoing sections of the Iowa workers’
compensation Act. Nothing in this rule shall be construed to
prevent the presentations of other medical opinions or
guides or other material evidence for the purpose of
establishing that the degree of permanent disability to which
the claimant would be entitled would be more or less than
the entitlement indicated in the Fifth Edition of the AMA
guides.
Id.
The Guides are not conclusive evidence on the extent of permanent
impairment. Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834, 839 (Iowa
1986). The agency’s rule specifically allows the commissioner to consider
other competent medical evidence when determining the percentage of
partial permanent disability resulting from a scheduled injury. See Iowa
Admin. Code r. 876—2.4. The commissioner does not consider loss of
earning capacity in determining a partial permanent disability for a
scheduled member. Mortimer, 502 N.W.2d at 15. Thus, in a case
involving a scheduled injury, if there is a causal connection between a
work-related injury and a functional impairment, the statute allows the
commissioner to find a partial permanent disability.
The legislature devised a different standard for determining the
extent of partial permanent disability for unscheduled injuries. When
determining the extent of permanent disability resulting from
unscheduled injuries, the commissioner must assess whether the injury
diminished the injured worker’s earning capacity. Iowa Code
§ 85.34(2)(u). The Code provides:
In all cases of permanent partial disability other than those
hereinabove described or referred to in paragraphs “a”
through “t” hereof, the compensation shall be paid during
the number of weeks in relation to five hundred weeks as the
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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.
Id.
We have referred to the reduction in earning capacity as “industrial
disability.” McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa
1980). In determining industrial disability, the commissioner must look
at the injured worker’s “age, education, qualifications, experience and his
inability, because of the injury, to engage in employment for which he is
fitted.” Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 1121, 125
N.W.2d 251, 257 (1963). The commissioner also considers the claimant’s
functional impairment in determining the extent of industrial disability.
Mortimer, 502 N.W.2d at 14; Simbro v. Delong’s Sportswear, 332 N.W.2d
886, 887 (Iowa 1983). Although functional disability is a factor in the
determination of work-related industrial disability, it is not a conclusive
factor. McSpadden, 288 N.W.2d at 192. Thus, proof of an unscheduled
injury alone will not support an award of partial permanent disability.
The claimant must prove the work-related injury caused an industrial
disability.
B. Westling’s Partial Permanent Disability Claim. As we have
noted, Westling contends that he conclusively proved the shoulder
surgery caused permanent physical impairment and that the
commissioner’s finding to the contrary is not supported by substantial
evidence. He bases his contention on the premise that the Guides
defines “impairment” to include an anatomical derangement of the body.
Believing the commissioner erred in finding no work-related physical
impairment, Westling further contends the commissioner’s determination
that the injury caused no industrial disability must also be reversed.
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Westling’s arguments on appeal fail for two reasons. First, the
record did not conclusively establish that the shoulder surgery caused
permanent physical impairment. The evidence on this issue was mixed.
Although the surgeon’s surgical note provides evidence that structures in
Westling’s shoulder were removed and permanently altered, this evidence
did not stand alone. The record also contains the surgeon’s opinion that
Westling did not suffer any permanent physical impairment because of
the surgery and the opinion of the physician who performed the
independent medical examination who opined Westling did not suffer any
permanent impairment because of overuse while working for Hormel. As
the Guides are not conclusive evidence as to the definition of permanent
physical impairment or the extent of impairment, the commissioner did
not err in finding on this record that Westling failed to prove permanent
physical impairment resulting from the injury.
The second reason Westling’s argument on appeal must fail is that
he failed to establish that the commissioner erred in finding the work-
related injury did not cause industrial disability. Even if Westling had
proved to the satisfaction of the commissioner that the structural
derangement of the shoulder resulting from the surgery caused a
permanent physical impairment, it would have been to no avail. The
commissioner’s separate determination that the work-related injury
produced no loss of earning capacity was supported by substantial
evidence.
Our review of the record leads us to the same conclusion reached
by the court of appeals. It is not the role of the district court or the
appellate courts to reweigh the evidence. Arndt, 728 N.W.2d at 394–95.
Westling raises further issues on appeal. We need not reach these
issues because his further issues depend on us accepting his claim that
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the commissioner erred when he failed to find a causal relation between
Westling’s January 5, 2006 injury and his claimed disability.
IV. Disposition.
We agree with the district court and the court of appeals that the
commissioner did not err in determining Westling suffered no permanent
physical impairment or permanent disability as a consequence of a work-
related injury. Therefore, we affirm the decision of the court of appeals
and the judgment of the district court.
DECISION OF COURT OF APPEALS AND JUDGMENT OF THE
DISTRICT COURT AFFIRMED.
All justices concur except Mansfield, J., who takes no part.