Regional Care Hospital v. Marrs ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0959
Filed February 8, 2023
REGIONAL CARE HOSPITAL PARTNERS, INC., and ZURICH AMERICAN
INSURANCE COMPANY,
Petitioners-Appellants,
vs.
ROBERTA MARRS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.
An employer appeals following the denial of a petition for judicial review of
a workers’ compensation commissioner’s decision. AFFIRMED.
Rachael Diane Neff and Charles A. Blades of Smith, Mills, Schrock, Blades,
P.C., Cedar Rapids, for appellants.
John P. Dougherty of Lawyer, Dougherty & Palmer, P.L.C., West Des
Moines, for appellee.
Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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SCHUMACHER, Judge.
Regional Care Hospital Partners, Inc. and its workers’ compensation
insurance carrier, American Zurich Insurance Company (collectively, Regional
Care), appeal the denial of a petition for judicial review following a workers’
compensation commissioner finding Roberta Marrs was permanently and totally
disabled. Regional Care contends the commissioner’s finding lacks substantial
evidence and is irrational, illogical, and wholly unjustifiable. Because the
commissioner’s findings are supported by substantial evidence and are not
irrational, illogical, or otherwise unjustifiable, we affirm.
I. Background Facts & Proceedings
This case began in July 2014, following an injury Marrs sustained while
working as a nurse for Regional Care. That injury primarily affected her neck and
upper back. Marrs sought workers’ compensation benefits for the injury. A deputy
commissioner found Marrs suffered injuries to her spine. As a result, she was
awarded healing period benefits and a penalty was imposed against Regional Care
in June 2017. Regional Care appealed to the commissioner, who affirmed the
award of healing benefits but slightly decreased the penalty Regional Care owed.
That order was upheld on appeal. See Regional Care Hosp. Part., Inc. v. Marrs,
No. 19-2138, 2021 WL 609072, at *2 (Iowa Ct App. Feb. 17, 2021).
Marrs has undergone numerous medical consultations and treatments
since 2017. In general, such treatment was “conservative,” limited to “medications,
physical therapy, and injections.” Physical therapy and the injections, in particular,
appear to have provided some temporary relief from the pain Marrs endured.
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Marrs underwent a functional capacity evaluation (FCE) that placed her in
the U.S. Department of Labor’s “light work” category. But it also noted that Marrs
should “[l]imit sitting and standing to rare basis 1–5% of an 8 hour day.” That
determination was consistent with Marrs’s testimony, which indicated she spends
about ninety percent of her day laying down or in a traction machine. Marrs has
seen multiple doctors for evaluations. Dr. Stoken, Dr. Harbach, and Dr. Mooney
indicated that reasonable work restrictions would follow those detailed in the FCE.
An employability report was prepared in March 2020. That report utilized the
findings in the FCE to determine what jobs were available for Marrs. The report
identified sixteen positions available to Marrs. Marrs contests the validity of the
report, noting that she never met with the author. Additionally, some jobs were
ones she had worked at, and she believed she was not physically capable of
performing them. Marrs does not contest that she has made no attempts to find
employment since her injury, as she believes she is not capable of working.
Marrs petitioned seeking review-reopening of the prior decision in October
2018, seeking a determination of the extent of her disability and the proper
commencement date for permanency benefits. On June 11, 2021, a deputy
commissioner filed their review-reopening decision. The deputy expressly found
the FCE persuasive and Marrs to be credible. The deputy found Marrs had
suffered an eighty percent loss of future earning capacity. However, the deputy
also determined that Marrs had failed to demonstrate that she was totally and
permanently disabled.
Marrs appealed to the commissioner. The commissioner highlighted how
the FCE was unrebutted and adopted by all the treating physicians and experts in
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this case. The commissioner diverged from the deputy’s findings, noting that while
the FCE placed Marrs in the “light work” category, the evaluation also limited her
to sitting and standing for at most five percent of the day. The commissioner
explained, “While defendants produced a vocational report with jobs that
technically fall within the light work category, it is unclear how claimant could
perform any of those jobs (or any other job, for that matter) while having to lay
down for the vast majority of the day.” The commissioner determined Marrs was
totally and permanently disabled.
Regional Care petitioned for judicial review. After stressing the nature of
judicial review, the district court affirmed the commissioner’s ruling. Regional Care
appeals.
II. Standard of Review
This appeal presents a mixed question of law and fact. Regional Care
presents a fact question on the extent of Marrs’s disability. A question then arises
over whether the commissioner properly applied the law to those facts to determine
that Marrs is permanently and totally disabled.
We review fact findings by the commissioner for substantial evidence.
Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006). Our review “is not whether
the evidence supports a different finding than the finding made by the
commissioner, but whether the evidence ‘supports the findings actually made.’” Id.(citation omitted). “Evidence is substantial if a reasonable mind would accept it as
adequate to reach the given conclusion.” St. Luke’s Hosp. v. Gray, 604 N.W.2d
646, 649 (Iowa 2000). We will only reverse the commissioner’s application of law
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to the facts if it was irrational, illogical, or wholly unjustifiable. Larson Mfg. Co. v.
Thorson, 763 N.W.2d 842, 850 (Iowa 2009).
III. Discussion
Regional Care contends the commissioner wrongly found Marrs is
permanently and totally disabled. The focus of an inquiry into disability is not the
injury itself, but the reduction in Marrs’s earning capacity and ability to be
employed. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa
1980). Considerations include the claimant’s “age, education, qualifications,
experience and his inability, because the injury, to engage in employment for which
he is fitted.” Id. While functional disability is relevant, it is not dispositive. Id.The commissioner determined that Marrs suffered an injury to her spine that
limits her ability to perform basic tasks. That finding is supported by substantial
evidence. The FCE report, while generally placing Marrs into the “light work”
category, included restrictions on her time spent sitting and standing. The report
limited those activities to one to five percent of an eight-hour day, or about five to
twenty-five minutes a day. The FCE was adopted by all of the physicians who
opined on what work restrictions would be appropriate. And it tracks Marrs’s own
testimony—which the deputy found credible—that indicated she spends about
ninety percent of her day laying down or in a traction machine. Thus, substantial
evidence supports the commissioner’s determination of the scope of Marrs’s injury.
The commissioner’s application of the law to those facts was not illogical or
irrational for largely the same reasons. The FCE—and by extension, the
physicians who adopted its findings—concluded Marrs could spend almost no time
sitting or standing. As the commissioner reasonably found, “it is unclear how
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claimant could perform any of those jobs [identified in the vocational report] (or any
job, for that matter) while having to lay down for the vast majority of the day.” It
was not irrational or illogical to take the findings of several physicians and the FCE
and conclude Marrs would not be able to find employment.
Regional Care raises several points to challenge that finding. First, they
contend the unrebutted vocational report included jobs in which Marrs could be
employed. As part of this argument, they also suggest Marrs could not rebut the
vocational report on her own. Instead, Regional Care contends, she needed
expert testimony.
We disagree. First, lay testimony is relevant when determining the extent
of the claimant’s injuries. See Sherman v. Pella Corp., 576 N.W.2d 312, 322 (Iowa
1998). Thus, Marrs’s testimony about her physical abilities was properly relevant
to the commissioner’s determination. Second, “the commissioner, as fact finder,
is responsible for determining the weight to be given expert testimony.” Cedar
Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 850 (Iowa 2011). Here, the
commissioner determined the vocational report was rebutted by the facts in the
FCE, namely Marrs’s inability to sit or stand. We, “in our appellate capacity, ‘are
not at liberty to accept contradictory opinions of other experts in order to reject the
finding of the commissioner.’” Id. (citation omitted). The commissioner reasonably
credited the restrictions in the FCE over the vocational report job options. As
explained above, every physician who examined the report indicated it placed
reasonable restrictions on Marrs. The commissioner was not irrational or illogical
in crediting the FCE over the vocational report.
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Finally, Regional Care highlights that Marrs never attempted to search for
jobs that may accommodate her disability. It is true that an award of permanent
and total disability generally requires the claimant to conduct a good faith job
search. Rathbun Reg’l Water Ass’n, Inc. v. Hardin, No. 01-1928, 2002 WL
31312149, at *2 (Iowa Ct. App. Oct. 16, 2002). However, a job search is not
necessary if there is substantial evidence the search would be futile. Id. Here,
Marrs credibly testified that she declined to search for a job because she believed
she would not find any due to her need to stay laying down for ninety percent of
the day. Her position is supported by the findings of the FCE. The lack of job
search is not fatal to her claim of permanent disability.
AFFIRMED.