Steven J. Bell Jr. v. 3e, A/K/A Electrical & Engineering Co., and Travelers indemnity/ct ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0044
Filed March 11, 2015
STEVEN J. BELL JR.,
Petitioner-Appellant,
vs.
3E, a/k/a ELECTRICAL & ENGINEERING
CO., and TRAVELERS INDEMNITY/CT,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lawrence P.
McLellan, Judge.
An employee appeals a judicial review decision affirming the award by the
workers’ compensation commissioner. AFFIRMED.
Mark Soldat of Soldat, Parrish-Sams & Gustafson, P.L.C., West Des
Moines, for appellant.
James M. Ballard of Ballard Law Firm, P.L.L.C., Waukee, for appellees.
Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.
Employee Steven Bell challenges a finding by the Iowa Workers’
Compensation Commissioner that he suffered a five percent industrial disability
following a workplace fall. Bell claims the commissioner erred in not considering
his possible career as a firefighter in determining his lost earning capacity. Bell
also claims the commissioner failed to make the credibility findings required by
Iowa Code section 17A.16 (2011). Bell further argues the commissioner
prematurely decided the extent of permanent disability.
The commissioner adopted the deputy’s decision, which explained the
deputy’s reasoning and pointed to relevant evidence in the record supporting the
conclusions. Substantial evidence supports the commissioner’s findings of five
percent industrial disability and maximum medical improvement. Accordingly, we
affirm.
I. Background Facts and Proceedings
Steven Bell Jr. was working as an “inside sales” representative for
Electrical & Engineering Co. (3E). He was on his way to lunch on March 19,
2010, when he slipped and fell in the 3E lobby. At the time of the fall, Bell was
forty-two years old.
The fall resulted in a left wrist sprain, a trauma-induced ganglion cyst,
lower back strain, and a contusion to the left shoulder and elbow. On March 22,
2010, Bell saw Dr. Richard McCaughey, D.O. Dr. McCaughey diagnosed Bell
with “residual tenderness” in his left elbow, wrist, shoulder, and right lower back.
An MRI on March 23, 2010, revealed “arthritic changes with a bony hypertrophy
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and soft tissue hypertrophy at the acromioclavicular joint” along with a “tiny
inferior surface tear involving the supraspinatus tendon anteriorly.” Bell returned
to work in late March, restricted from using his left arm. Bell saw Dr. Barron
Bremner, D.O. for his wrist and shoulder. Dr. Bremner recommended physical
therapy and predicted Bell “should have a full recovery.”
Bell underwent surgery, performed by Dr. Bremner, to remove the cyst
from his wrist in early May and continued physical therapy for his wrist and
shoulder. After leaving physical therapy in mid-May 2010, Bell returned at the
end of the month complaining of increased back pain. Dr. McCaughey ordered
an MRI for Bell’s back. The MRI, done on June 22, 2010, revealed no problems
or “abnormalities of the lumbar spine.” On June 24, 2010, Dr. McCaughey
released Bell to work without restrictions.
On June 4, 2010, Bell filed a petition with the workers’ compensation
commission. A deputy commissioner held a hearing on May 4, 2011, and filed
her decision on July 21, 2011. The deputy found Bell’s accident left him with a
five percent industrial disability. On October 15, 2012, the commissioner
adopted the findings of the deputy. Bell sought judicial review, and on July 9,
2013, the district court affirmed the commissioner on all grounds.
Bell now appeals.
II. Scope and Standards of Review
Our review is governed by Iowa Code chapter 17A. 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
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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.We have authority to affirm the agency action or remand to the agency for
further proceedings. Iowa Code § 17A.19(10). We may “reverse, modify, or
grant other appropriate relief” if we determine the agency’s ruling was “not
supported by substantial evidence” or was otherwise legally flawed. Id. On
appeal, Bell alleges error under the following paragraphs of Iowa Code section
17A.19(10)—(b), (c), (f), (i), (j), (m), and (n).
Substantial evidence is defined 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). We give significant deference to the
agency’s credibility findings. Lange v. Iowa Dep’t of Revenue, 710 N.W.2d 242,
247 (Iowa 2006). As reviewing courts, we can only grant relief if the agency’s
factual determination “is not supported by substantial evidence in the record
before the court when that record is reviewed as a whole.” Id.Because Bell’s challenge to the commissioner’s industrial disability
determination depends on the application of law to facts, we will not disturb the
ruling unless it is “irrational, illogical, or wholly unjustifiable.” See Neal v. Annett
Holdings, Inc., 814 N.W.2d 512, 526 (Iowa 2012).
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III. Analysis
A. Lost Earning Capacity
Bell first argues the commissioner erred in calculating the extent of his
industrial disability because the deputy’s decision rejected evidence in the record
comparing his pre-injury and post-injury capacity to be a firefighter.
Industrial disability measures an injured worker’s lost earning capacity.
Second Injury Fund v. Shank, 516 N.W.2d 808, 813 (Iowa 1994). Relevant
factors for determining disability include the employee’s functional impairment,
age, intelligence, education, qualifications, experience, and the ability of the
employee to engage in employment for which he is suited. Id. Considering
these factors, the focus is not solely on what the worker can and cannot do; the
focus is on the ability of the worker to be gainfully employed. Guyton v. Irving
Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985).
The agency record included evidence concerning Bell’s aspirations to be a
firefighter. Bell received his degree in fire and science technology from Des
Moines Area Community College (DMACC) in 1997. He passed both the written
and physical agility examinations required to serve as a firefighter. His name
appeared on the hiring list for the Des Moines Fire Department, but he was never
offered a firefighter position. Bell served as a volunteer firefighter in Grimes for
two years. Bell has not applied for any firefighter positions since 1997. After
1997, Bell worked in counter sales for 3E, then in 2005 Bell moved to inside
sales. The inside sales job requires Bell to enter orders into his computer at his
desk in the office.
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On appeal, Bell focuses on a footnote in the deputy’s decision and
adopted by the commissioner, which is somewhat dismissive of the proof Bell
had the capacity to be a firefighter. That footnote stated:
There was a great deal of evidence on [Bell’s] desire to someday
get back to being a firefighter. He claimed that this was his dream
position yet between 1997 when he quit because of the birth of his
son and prior to his injury in 2010, [Bell] never applied for another
position, either permanent or volunteer. Because of this, [the
deputy commissioner] did not consider [Bell’s] industrial disability to
include firefighter positions. If anything, the multitude of evidence
regarding [Bell’s] desire to be a firefighter was an attempt to
exaggerate his claim and incorrectly inflate [Bell’s] loss of
employability.
Bell argues this footnote shows the commissioner misapplied the legal
principles governing industrial disability determinations. He claims the workers’
compensation statute does not require an employee to have pursued a particular
position to establish he or she has the capacity to perform it. Bell contends the
commissioner failed to consider evidence Bell had the capacity to generate more
earnings as a firefighter than the income he received from working in sales for
3E. Bell requests we reverse and remand for the commissioner to consider his
earning capacity as a firefighter.
On judicial review, the district court decided Bell “provided no objective
proof that he was capable of becoming a firefighter immediately prior to his 2010
injury. Therefore, the court finds that the commissioner properly considered the
fact of Bell’s minimal work experience as a firefighter when he chose not to
include any lost earning capacity from employment as a firefighter.”
We agree with the district court’s analysis. The commissioner noted Bell’s
DMACC coursework and his work history as a volunteer firefighter. The
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commissioner also observed that Bell “quit the volunteer firefighter position to
spend more time with his son” in 1997 and had not worked in a physically
demanding position since then. Bell presented no objective evidence he was still
capable of being a firefighter; twelve years had passed between Bell taking the
exams and his workplace injury. The commissioner properly considered Bell’s
fitness for employment as a firefighter and determined the evidence did not show
he had the current ability to work in that field.
B. Section 17A.16
Bell next argues the arbitration decision drafted by the deputy
commissioner and adopted by the commissioner failed to satisfy Iowa Code
section 17A.16 because it did not separate its findings of fact from its conclusions
of law and did not offer credibility findings concerning the witnesses.
Section 17A.16 requires the commissioner to give “findings of fact and
conclusions of law, separately stated.” Iowa Code § 17A.16. The provision also
mandates that the commissioner’s factual findings “if set forth in statutory
language, shall be accompanied by a concise and explicit statement of
underlying facts supporting the findings.” Iowa Code § 17A.16. This mandate is
consistent with “the commissioner’s duty as the trier of fact to determine the
credibility of the witnesses, weigh the evidence, and decide the facts in issue.”
Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 259–60 (Iowa 2012).
We do not hold the commissioner to technical compliance with this
provision as long as we can determine where finding of facts end and
conclusions of law begin or otherwise can track the commissioner’s analytical
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process. See Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 137 (Iowa Ct. App.
2008). If we can work backward from the agency’s ultimate outcome, we will not
find error under section 17A.16. Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d
904, 909 (Iowa 1987).
The agency decision is divided into a finding-of-fact section and a
conclusion-of-law section. The decision logically sets forth the commissioner’s
thought process. The decision gives specific findings on Bell’s credibility and
while other credibility findings are not explicit, they can be discerned from the
direction of the analysis. See Second Injury Fund v. Braden, 459 N.W.2d 467,
471 (Iowa 1990) (finding credibility determination inhered in ruling when order
contained no specific discussion of credibility). On this record, we find the
agency complied with section 17A.16. See Bridgestone/Firestone, Pac. Emp’rs
Ins. v. Cathy Accordino, 561 N.W.2d 60, 62 (Iowa 1997).
C. Maximum Medical Improvement
In his final assignment of error, Bell argues the issue of permanent
disability was not ripe for adjudication because the doctors did not find he had
reached maximum medical improvement (MMI) for his back injury. MMI refers to
stabilization of the worker’s condition or at least a finding the condition is not
likely to abate in the future despite medical treatment. See Dunlap v. Action
Warehouse, 824 N.W.2d 545, 557 (Iowa Ct. App. 2012). Before a worker has
achieved MMI, only temporary benefits are available. See Bell Bros. Heating &
Air Conditioning v. Gwinn, 779 N.W.2d 193, 200 (Iowa 2010).
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Dr. John D. Kuhnlein, D.O. performed an independent medical
examination (IME) of Bell on February 23, 2011. Bell asserts Dr. Kuhnlein “only
indicated conditionally” that Bell had “reached maximum medical improvement
for his back pain without further treatment on June 24, 2010, his last visit with Dr.
McCaughey.” Bell contends the commissioner’s decision on permanent benefits
violated the dictates of Bell Bros., 779 N.W.2d at 201.
3E argues the commissioner’s decision that Bell had reached MMI was
supported by substantial evidence. Dr. Kuhnlein stated: “Mr. Bell reached
maximum medical improvement for his upper extremity conditions on November
7, 2010, six months after surgery.” Dr. Kuhnlein further opined Bell reached MMI
for his back in June 2010. 3E asserts that when Dr. Kuhnlein made the
statement “without further treatment” he was only referring to future treatment if
Bell could not tolerate the back pain, not future healing.
Dr. Kuhnlein explained:
I would only suggest a pain specialist if his current treatment is not
adequate to treat his back pain. Mr. Bell may need to acknowledge
that he will have some ongoing back pain for the foreseeable
future, and, only if it is unmanageable, would he need to see a
chronic pain specialist for his back.
We agree with 3E. Reading the full opinion of Dr. Kuhnlein, it is evident the
expert believed Bell had reached MMI for his back injury and only suggested
future treatment for pain management.
The commissioner granted future alternative care for any ongoing pain
treatment. MMI and alternative care are not necessarily mutually exclusive. Our
supreme court has decided ongoing pain does not extend the healing period if it
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does not decrease the industrial disability. Pitzer v. Rowley Interstate, 507
N.W.2d 389, 392 (Iowa 1993). Here, the record shows any future treatments
anticipated by Dr. Kuhnlein would be aimed at managing Bell’s back pain. We
find that in accordance with Bell Bros., the question of permanent impairment
was ripe for the commissioner’s consideration.
AFFIRMED.