robin-lull-gumbusky-petitioner-appellantcross-appellee-v-great-plains ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1886
Filed February 11, 2015
ROBIN LULL-GUMBUSKY,
Petitioner-Appellant/Cross-Appellee,
vs.
GREAT PLAINS COMMUNICATION, a/k/a
GREAT PLAINS LOCATING SERVICES, INC.,
n/k/a PROMARK CONSOLIDATED UTILITY
LOCATORS, INC., a/k/a IOWA ONE CALL,
EMPLOYERS MUTUAL CASUALTY, and
COMMERCE AND INDUSTRY INSURANCE
COMPANY,
Respondents-Appellees/Cross-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
Robin Lull-Gumbusky appeals the district court order denying her petition
for judicial review. Promark cross-appeals the order requiring payment of
ongoing medical expenses. AFFIRMED.
Mark S. Soldat of Soldat, Parrish-Sams & Gustafson, P.L.C., West Des
Moines, for appellant/cross-appellee.
Aaron T. Oliver of Hansen, McClintock & Riley, Des Moines, for
appellees/cross-appellants Promark.
Jeffrey M. Margolin of Hopkins & Huebner, P.C., Des Moines, for appellee
Great Plains.
Heard by Danilson, C.J., and Doyle and Bower, JJ.
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BOWER, J.
In this appeal and cross-appeal we are to consider the district court’s
affirmance of the ruling of the workers’ compensation commissioner concerning
employee Robin Lull-Gumbusky (Robin). Robin claims (1) the district court erred
by affirming the exclusion of the majority of her exhibits; and (2) the
commissioner misapplied the review/reopening law, proximate cause laws, Iowa
Code chapter 17A, Iowa Code section 85.34, and industrial disability principles.
On cross-appeal, the employer, Promark Consolidated Utility Locators Inc., and
Commerce and Industry Insurance Company (Promark), claim the district court
erred in affirming the agency order to pay for Robin’s low-back medical
expenses, provide ongoing low-back treatment for the 2007 injury, and increase
Robin’s permanent partial disability (PPD) benefits by ten percent. We affirm.
I. BACKGROUND FACTS
Robin began working for Great Plains Communication (Great Plains) in
February 1999 as a utility locator. Her primary duty was to locate and mark
buried utility lines. This was a seasonal position, allowing her to collect
unemployment during the winter months.
On November 27, 2002, while working, Robin drove through a “T-
intersection” and into a ditch. She sustained a serious spine fracture, requiring
fusion surgery and the installation of extensive supportive hardware. Robin had
a “smooth post-op course” and was discharged on December 11, 2002.
On January 11, 2005, Robin entered into a settlement agreement with
Great Plains for the 2002 injury. The settlement included approximately forty
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weeks of temporary total disability/healing period (TTD/HP) benefits, thirty-five
percent PPD benefits for 175 weeks, and an agreement for ongoing medical
treatment. Robin continued to work as a utility locator from 2004 through part of
2007. During this time she continued to experience problems associated with
her injury.
In March 2007, Great Plains’s name changed to Promark Consolidated
Utility Locators, Inc., as did its insurance carrier. Robin was hired by Promark as
a utility locator without an interruption in her normal work schedule. On August 2,
2007, Robin sustained another work-related injury. While descending a ditch,
she slipped and landed on her back before slipping again and landing on her
“rump, where it pushed, jarred everything up.” A few months after this incident,
Robin quit her job as a utility locator. Claiming her symptoms and pain increased
due to the second injury, she filed a review-reopening petition against Great
Plains and its insurance carrier Employer’s Mutual Casualty, and a workers’
compensation claim against Promark and its insurance carrier Commerce &
Industry Insurance Company.
In her review-reopening petition, Robin claimed the condition caused by
the 2007 accident warranted an increase in compensation from the 2005
settlement agreement. In her original notice and petition against Promark for the
2007 injury, she also asked for a determination concerning the extent of the
injury, plus credit/interest, Iowa Code section 85.27 expenses and benefits,
penalties and costs.
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II. PREVIOUS PROCEEDINGS
The deputy workers’ compensation commissioner (deputy) held contested
arbitration proceedings on March 28, 2011. At the hearing the files for Great
Plains and Promark were consolidated. As a preliminary issue, the deputy
commissioner noted Robin’s medical records in “Exhibit I” did not conform to the
format required by the hearing assignment order. The records were organized in
chronological order, rather than chronological order by provider. The deputy was
aware Robin’s attorney, Mark Soldat, had been warned on multiple occasions
about presenting exhibits in violation of the rule. The deputy told Soldat his
noncompliance would lead to the exclusion of the exhibits. Soldat claimed the
hearing assignment order “wasn’t adopted by a rule in any case,” and strict
chronology provides a better understanding of medical treatment. The deputy
rejected the argument and excluded Exhibit I. Though, the deputy did accept
one report authored by Dr. John Kuhnlein, which was included in the exhibit.
Robin’s husband Steve testified at the hearing. He described Robin’s
issues with ongoing pain since the 2002 accident. Her treating physician, Dr.
Sufka-Boyd, recommended Robin see a chronic pain specialist; Kuhnlein made
the same recommendation. Steve also described the issues Robin developed
with anxiety while driving. He said the 2007 injury magnified her pain and
anxiety, and ultimately made it impossible for Robin to do her job.
Robin also testified. She first described the enjoyment she had derived
from her work. Then she described the 2002 injury and its lingering effects. The
injury caused her to work slower to avoid re-injury. After her 2007 injury, Robin
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noted her confidence decreased and her anxiety increased; she enjoyed her job
but found driving to be scary. She now thought walking through ditches was
dangerous, which she did not before the accident. After the 2007-2008 winter
layoff, she worked in March and part of April before quitting. Robin felt she could
no longer perform the job but managed to work several jobs following her utility
locator position. She left those jobs for a variety of reasons. Robin testified she
had not seen a psychiatrist since her first injury in 2002. After both injuries she
continued to drive herself for work and worked normal hours. She testified the
decision to quit was hers not a doctor’s, and she did not talk to anyone at Great
Plains or Promark before deciding to quit.
The deputy issued the review-reopening decision/arbitration decision on
July 28, 2011. The deputy first noted Soldat failed to organize the exhibits, and
since he had violated similar orders in the past, excluded those exhibits. The
deputy found Robin sustained a work injury on November 27, 2002, and her
claim for workers’ compensation was settled by agreement on January 11, 2005.
Pursuant to the agreement, Robin was entitled to PPD benefits equal to thirty-five
percent of the body as a whole. The deputy also found Robin had been
evaluated by Kuhnlein following the 2002 injury, and Kuhnlein assigned her a
twenty-eight percent impairment of the whole person. Kuhnlein did not rate her
mental health as it could not be quantified for an impairment rating.
The deputy found Robin continued to have pain after the 2002 injury into
2007 when she suffered the second accident. After Robin fell into the ditch, she
worked the rest of her shift and reported to the emergency room. She took the
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following day off (Friday), and returned to work on Monday. Robin sought no
further medical treatment for the remainder of her seven weeks with Promark.
She then underwent physical therapy and pain management assistance from a
pain specialist. These treatments helped Robin’s symptoms improve.
The deputy also found Robin saw Kuhnlein again in 2010. In his report,
Kuhnlein opined her impairment rating, related to her 2002 injury, was the same
as he found previously. The deputy found Kuhnlein attributed an additional three
percent whole person impairment to Robin’s injuries from the 2007 accident.
After reviewing the evidence, the deputy found Robin’s neck pain was not related
to her 2007 injury as there was little mention of the pain before her fall in 2009.
The deputy also found the numbness in her hands could not be attributed to the
2002 or 2007 injuries. Finally the deputy found Kuhnlein’s report persuasive, but
found Robin lacked credibility due to false answers given under oath concerning
her prior substance abuse.
After reviewing Robin’s claim for PPD benefits, the deputy found there
was no observable physical change relating to the second injury, and the
impairment rating was based on a subjective report. The deputy denied Robin’s
claim for PPD benefits relating to the 2007 incident. The deputy found there had
been no impairment rating provided by an employer-retained physician, and
denied Robin’s claim for reimbursement for Kuhnlein’s costs. Robin’s claim for
rehabilitation benefits was also denied. The deputy found Robin was entitled to a
lifetime of reasonable medical care for the 2002 injury. Her ongoing care
remained the responsibility of Great Plains. The deputy found care had been
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abandoned, and Robin’s medical expenses for Sufka-Boyd should be paid or
reimbursed by Great Plains. The costs in both claims were taxed to Great
Plains. Robin and Great Plains appealed to the commissioner.
After conducting a de novo review of the record, the commissioner
concluded the deputy did not abuse his discretion in excluding the evidence for
being improperly submitted. The commissioner concluded, as no offer of proof
was made regarding the evidence, Robin failed to preserve error on the
exclusion of her exhibits. The commissioner struck all portions of Robin’s brief
discussing evidence not contained in the record.
The commissioner found Robin failed to carry her burden on the
review/reopening petition. He also found Great Plains did not obtain a new Iowa
Code section 85.39 evaluation of Robin, and Kuhnlein’s costs could not be taxed
to Great Plains. The commissioner affirmed the deputy’s denial of Robin’s
rehabilitation benefits, ruling she did not establish the requisite inability to return
to gainful employment.
Relying on Kuhnlein’s report, the commissioner found, Robin had
established a three percent permanent impairment to the body as a whole as a
result of the 2007 injury. Relying on evidence of her increased medication use,
Steve Gumbusky’s testimony, a medical opinion Robin could not continue
working as a utility locator, and Kuhnlein’s report of an increased permanent
impairment, the commissioner concluded Robin had shown by a preponderance
of the evidence she sustained a permanent compensable work injury to her
lumbar spine in August 2007. The commissioner found Robin was entitled to an
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additional ten percent PPD benefits, attributable to Promark, and one day of
healing period benefits. The commissioner determined Robin’s weekly rate for
benefits, from the 2007 injury, was $463.10.
The commissioner concluded no employee-retained physician offered an
impairment rating of Robin’s injury, and denied her claim for reimbursement of
Kuhnlein’s costs from the 2007 injury. The commissioner also denied her claim
for rehabilitation as she returned to the same job after her injury. The
commissioner concluded Robin was entitled to lifetime reasonable medical care
from Great Plains for pain in her ribcage plus any needed mental health
treatment causally related to the 2002 incident. The commissioner also
concluded Robin was entitled to ongoing and future medical care relating to her
lower back from Promark, as directed by Sufka-Boyd.
Great Plains and Robin each requested rehearing. The commissioner
clarified the taxing of costs against each defendant. The commissioner also
noted the costs of Kuhnlein’s examinations and reports were not taxed to either
defendant. He referred the parties to Iowa Code section 85.32 regarding the
date for the commencement of benefits, and instructed the parties to work
towards agreement on the amount of interest due. Finally, the commissioner
explained which expenses were the responsibility of Great Plains and which were
the responsibility of Promark.
Robin petitioned and Promark cross-petitioned for judicial review. Great
Plains did not file a cross-appeal.
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The district court affirmed the commissioner’s ruling in all respects other
than a modification to the parties’ future medical obligations. The district court
modified the commissioner’s ruling:
In the Appeal Decision, the Commissioner discussed the
applicable law regarding medical benefits as provided in Iowa Code
section 85.27. The Commissioner discussed the law regarding an
award of alternate medical care. As the Commissioner discussed
law regarding an award of alternate medical care, and awarded
Robin medical care controlled by Dr. Sufka-Boyd, the court
concludes the Commissioner intended to award alternate medical
care to Robin to ensure her continued treatment. The court
therefore modifies the Appeal Decision to explicitly provide
alternate medical care for her August 2007 injury from
Promark/Commerce & Industry. See Iowa Code § 17A 19(10)
(providing “The court may affirm the agency action or remand to the
agency for further proceedings. The court shall reverse, modify, or
grant other appropriate relief from agency action, equitable or legal
and including declaratory relief if it determines that substantial
rights of the person seeking judicial relief have been
prejudiced . . . .”). The court otherwise finds that the Commissioner
committed no error in ordering Promark/Commerce & Industry
responsible for ongoing and future medical care for Robin’s low
back symptoms and injury, and affirms the Appeal Decision on this
issue.
Regarding the Commissioner’s order pertaining to ongoing
and future medical care of Robin’s issues originally addressed in
the settlement following the 2002 injury, the court finds the
Commissioner erred in limiting Robin’s ongoing and future medical
care provided by Great Plains/EMC to only Robin’s rib cage and
mental health. The court finds that the settlement agreement
covered all of Robin’s ongoing and future medical care causally
related to the 2002 accident, and the Commissioner unnecessarily
limited care relating to the 2002 injury in the Appeal Decision.
Therefore, the court modifies the Appeal Decision. See Iowa Code
§17A19(10). Great Plains/EMC shall be responsible for all of
Robin’s ongoing and future medical care causally related to the
2002 accident, except that the ongoing and future medical care for
Robin’s low back injury and increased low back pain relating to the
2007 injury shall be the responsibility of Promark/Commerce &
Industry.
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From this ruling, Robin appeals, Promark cross-appeals, and Great Plains
does not appeal.
III. STANDARDS OF REVIEW
Our review is governed by Iowa Code chapter 17A (2013). See Mike
Brooks, Inc. v. House, 843 N.W.2d 885, 888 (Iowa 2014). Under chapter 17A,
the district court acts in an appellate capacity to correct errors of law. Id. In
reviewing the district court’s decision, we apply the standards of chapter 17A to
determine whether we reach the same conclusions as the district court. Id. at
889. If we do, we affirm; if not, we reverse. Id. In reviewing agency action, the
district court may only reverse or modify if the agency’s decision is erroneous
under one of the provisions set forth in Iowa Code section 17A.19(10) and a
party’s substantial rights have been prejudiced. Gits Mfg. v. Frank, 855 N.W.2d
195, 197 (Iowa 2014).
We may reverse, modify, affirm, or remand the case to the commissioner
for further proceedings if we conclude the agency’s action is affected by an error
at law or if it is not supported by substantial evidence. Iowa Code § 17A.19(10);
Gits Mfg. Co., 855 N.W.2d at 197. “‘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 the establishment of that fact are understood to be serious and of
great importance.” Iowa Code § 17A.19(10)(f)(1). Substantial evidence supports
an agency’s decision even if the interpretation of the evidence may be open to a
fair difference of opinion. Arndt v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa
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2007). Accordingly, the district court and the appellate court should not consider
the evidence insubstantial merely because the court may draw different
conclusions from the record. Id.Robin’s claims on appeal concern whether the commissioner correctly
applied the law to the facts, and whether the commissioner correctly excluded
evidence (questions of law and fact). Promark’s claims on cross-appeal concern
whether the commissioner ignored factual evidence and the language of the
settlement, and whether the commissioner’s decision was supported by
substantial evidence (questions of fact).
If the claim of error lies with the agency’s findings of fact, the proper
question on review is whether substantial evidence supports those
findings of fact. If the findings of fact are not challenged, but the
claim of error lies with the agency’s interpretation of the law, the
question on review is whether the agency’s interpretation was
erroneous, and we may substitute our interpretation for the
agency’s. Clark [v. Vicorp Restaurants, Inc.], 696 N.W.2d [596,]
604 [(Iowa 2005)] (citing Iowa Code § 17A.19 (10)(c), (11)(b));
Mycogen Seeds [v. Sands], 686 N.W.2d [457,] 464 [(Iowa 2004)].
Still, if there is no challenge to the agency’s findings of fact or
interpretation of the law, but the claim of error lies with the ultimate
conclusion reached, then the challenge is to the agency’s
application of the law to the facts, and the question on review is
whether the agency abused its discretion by, for example,
employing wholly irrational reasoning or ignoring important and
relevant evidence. See Iowa Code § 17A.19 (10)(i), (j). In sum,
when an agency decision on appeal involves mixed questions of
law and fact, care must be taken to articulate the proper inquiry for
review instead of lumping the fact, law, and application questions
together within the umbrella of a substantial-evidence issue.
Meyer v. IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006).
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IV. ANALYSIS
A. Exclusion of Exhibit I
Robin claims the court erred by affirming the agency’s exclusion of her
Exhibit I due to her violation of the hearing assignment order.1 We note the
record shows the deputy commissioner had admonished Robin’s attorney at
several prior proceedings for submitting evidence in a manner the agency found
“unhelpful and unwanted.” On review, the commissioner stated: “[t]he division
and its professional staff have a workflow and internal practices which make the
presentation of exhibits in a uniform manner a necessity. The counsel’s plea to
do it his way due to his desire to ‘build a better mousetrap’ . . . is rejected.” The
district court agreed with the commissioner’s assessment.
We review the exclusion of Exhibit I for an abuse of discretion. See
Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595, 598 (Iowa 1997) (“The
imposition of sanctions by administrative agencies is discretionary.”). This court
shall reverse or grant other appropriate relief from agency action when that
action is an abuse of discretion. Iowa Code § 17A.19(10)(n). An abuse of
discretion occurs when the agency exercises its discretion on untenable grounds
or its exercise of discretion was clearly erroneous. See IBP Inc., v. Al–Gharib,
604 N.W.2d 621, 630 (Iowa 2000). The agency has broad discretion in oversight
and determinations about the admissibility of evidence. See Marovec v. PMX
Industries, 693 N.W.2d 779, 786 (Iowa 2005).
1
Promark and Great Plains claim Robin did not preserve error on the exclusion of her
exhibits. For the purposes of this appeal, we will assume Robin preserved error for this
issue.
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Iowa Administrative rule 876-4.36 permits the commissioner to sanction a
party for noncompliance with a rule or order:
If any party to a contested case or an attorney representing such
party shall fail to comply with these rules or any order of a deputy
commissioner or the workers’ compensation commissioner, the
deputy commissioner or workers’ compensation commissioner may
impose sanctions which may include dismissing the action without
prejudice, excluding or limiting evidence, assessing costs or
expenses, and closing the record in whole or in part to further
activity by the party.
As stated by our supreme court, “It is of no concern to a court reviewing
an administrative sanction whether a different sanction would be more
appropriate or whether a less extensive sanction would have sufficed; such
matters are the province of the agency.” Marovec, 693 N.W.2d at 786. We
agree and find the exclusion of Robin’s Exhibit I was not an abuse of discretion
by the agency. Consequently, we shall not consider the materials excluded by
the commissioner, even though Robin extensively cites the excluded material in
her brief.
B. Review/Reopening
Robin claims the district court erred by affirming the commissioner’s failure
to award PPD. Her claim focuses on her perception the commissioner
misapplied the law to the facts. Courts will not reverse that application unless it
is “irrational, illogical, or wholly unjustifiable.” See Neal v. Annett Holdings, Inc.,
814 N .W.2d 512, 518 (Iowa 2012). Robin’s claim appears to focus on error’s
made in the agency’s findings of fact. We review an agency’s fact finding to
determine if substantial evidence supports the decision. Meyer, 710 N.W.2d at
219. “‘Substantial evidence’ means the quantity and quality of evidence that
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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)(l).
For a compensable review-reopening claim, Robin has the burden, by a
preponderance of the evidence, to prove her current condition is “proximately
caused by the original injury.” Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 392
(Iowa 2009) (citation omitted). “The commissioner must then evaluate ‘the
condition of the employee, which is found to exist subsequent to the date of the
award being reviewed.’ The commissioner is not supposed to ‘re-determine the
condition of the employee which was adjudicated by the former award.’” Id. at
391 (citations omitted). The change may be either economic or physical.
Blacksmith v. All-American Inc., 290 N.W.2d 348 (lowa 1980); Henderson v. Iies,
96 N.W.2d 321 (Iowa 1959). The commissioner may adjust awards pursuant to
Iowa Code section 86.14(2) by determining the employee’s condition “warrants
an end to, diminishment of, or increase of compensation so awarded or agreed
upon.”
Robin claims she has an increased industrial disability due to worsening
symptoms attributable to one or both incidents. The commissioner relied on
Kuhnlein’s findings to note she had no additional impairment related to the 2002
injury. Kuhnlein also noted Robin’s mental health status had not changed
substantially since he saw her in 2004. The commissioner stated Robin had not
proved any economic or other related change resulting from the 2002 injury. The
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commissioner found Robin failed to carry her burden of proof to establish a
change in condition or entitlement to additional permanent partial disability
benefits for the November 27, 2002 date of injury. The district court agreed. We
find substantial evidence supports the commissioner’s decision and affirm.
C. Promark’s Obligation to pay Low-back Expenses and Ongoing
Treatment for the 2007 Injury; and Ten Percent PPD Award
(Cross Appeal Issues I and II)
Promark claims the commissioner and district court ignored the factual
evidence and controlling language from the settlement agreement by ordering
Promark to pay for Robin’s ongoing low-back treatment. Promark also claims the
commissioner and district court erred in ordering Promark to pay ten percent
PPD benefits. In its decision, the commissioner reasoned:
Claimant asserts various medical difficulties subsequent to
her work injury of August 2, 2007.
....
As to claimant’s prior medical complaints, Dr. Kuhnlein is in
the unique position of having evaluated claimant both before and
after her 2007 injury. As noted by the presiding deputy
commissioner, his even-handed and measured evaluation is highly
persuasive. Dr. Kuhnlein specifically identified that claimant
sustained a three percent whole person functional impairment
rating as a result of the 2007 work injury. Defendants’ authorized
surgeon, David Beck, M.D., similarly found that claimant sustained
a permanent impairment and loss of function of one percent of the
body as a whole as a result of the August 2, 2007 work injury. It is
therefore concluded that claimant has established that she
sustained additional permanent impairment as a direct and
proximate result of her August 2, 2007 injury.
It is further noted that Dr. Beck’s impairment rating lacks any
specificity as to how it was reached or under what provision of the
AMA Guides it was assigned. Dr. Kuhnlein’s assessment of a three
percent permanent impairment rating attributable to the August 2,
2007 injury was delineated as being under the AMA Guides and the
specific section of the Guides from which the rating could be
derived was identified by Dr. Kuhnlein. It is therefore further
concluded that Dr. Kuhnlein’s assessment of an additional three
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percent impairment to the body as a whole is accurate and the
basis for further permanent partial disability.
Due to the conclusion that the medical evidence supports an
award of permanent partial disability, the finding of the presiding
deputy that claimant is not a credible witness must be considered.
Even if claimant’s self-interested account of ongoing pain levels is
unreliable, this by no means implies that she has no pain or is not
still entitled to medical care for alleviation of that pain. Indeed, her
prescription usage increased significantly after the August 2, 2007
date of injury. I defer to the observations and credibility findings of
the presiding deputy and concur that claimant’s testimony is likely
exaggerated as to the extent of her symptoms and residual abilities.
Nevertheless, I find objective documentation of increased pain
medication usage, namely Dr. Kuhnlein’s persuasive opinion
explaining claimant’s increased medication usage and how she is
now taking the maximum allowable dosage of Vicodin. It is
concluded that this evidence, coupled with the testimony of
claimant’s husband, Steve Gumbusky, establishes that there has
been a permanent increase in claimant’s back symptoms as a
direct result of the August 2, 2007 date of injury.
Having concluded that claimant has established an
increased level of permanent functional impairment, it must also be
determined whether this permanent impairment has resulted in
further permanent disability. It is concluded that claimant quit her
job at Great Plains at least partially as a result of her increased
symptoms and anxiety about further injury. Although no physician
has imposed specific permanent work restrictions upon claimant
since the August 2, 2007 work injury, it must be noted that at least
one treating physician has concluded claimant cannot continue to
perform her work as a locator for Great Plains. Specifically, Joseph
A. Brunkhorst, M.D., opined in a December 18, 2008 letter to the
Social Security Administration that “I think it would be hard for her
to continue that type of work.” While recognizing the presiding
deputy’s concerns as to claimant’s testimony and her potential
exaggeration of her symptoms, the following conclusions are
provided. It is concluded that claimant has not proven a substantial
change of condition, or that she sustained any additional loss of
future earning capacity as a result of the November 27, 2002 date
of injury. However, given the increased permanent impairment, Dr.
Kuhnlein’s opinions about increased medication usage, and the
opinions of Dr. Brunkhorst about claimant’s ability to continue to
work as a locator for the employer, it is also concluded that
claimant has proven by a preponderance of the evidence that she
sustained a compensable, permanent work injury as a result of the
August 2, 2007 work injury. It is further concluded that claimant’s
injury resulting from the August 2, 2007 date of injury is limited to
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her lumbar spine. Dr. Kuhnlein’s opinions are accepted with
respect to causation issues for any alleged injuries to the neck,
shoulders or arms (carpal tunnel). Having considered numerous
factors of industrial disability it is concluded that claimant presently
has a permanent loss of earning capacity equal to forty-five percent
as a result of the August 2, 2007 work injury.
While other conclusions could be drawn from the evidence in the record,
we find the commissioner relied on substantial evidence in finding Robin was
entitled to ongoing treatment for the 2007 injury. See Arndt, 728 N.W.2d at 393(“Substantial evidence supports an agency’s decision even if the interpretation of
the evidence may be open to a fair difference of opinion.”).
V. CONCLUSION
For the foregoing reasons, we find the commissioner did not abuse his
discretion excluding Robin’s improperly submitted exhibits. We find substantial
evidence supports the commissioner’s denial of Robin’s review/reopening claim.
We also find substantial evidence supports the commissioner’s finding of an
additional ten percent PPD and Promark’s obligation for ongoing low-back
expenses and treatment. Thus, we affirm the judgment of the district court.
AFFIRMED.