Isaac Millanes-Ortiz v. Loyd Roling Construction and Grinnell Mutual Reinsurance ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-2077
Filed January 21, 2021
ISAAC MILLANES-ORTIZ,
Plaintiff-Appellant,
vs.
LOYD ROLING CONSTRUCTION and GRINNELL MUTUAL REINSURANCE,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.
The claimant appeals the district court’s ruling affirming the denial of
permanent partial disability benefits by the Workers’ Compensation
Commissioner. AFFIRMED.
Andrew W. Bribriesco, Bettendorf, for appellant.
Stephen W. Spencer and Christopher S. Spencer of Peddicord Wharton,
LLP, West Des Moines, for appellees.
Considered by Doyle, P.J., and Mullins and Greer, JJ.
2
GREER, Judge.
Isaac Millanes-Ortiz (Ortiz) fell at work and suffered injuries that required
hospitalization and surgery. While the work injury was not contested, Ortiz’s
request for permanent partial disability (PPD) benefits was.1 The Worker’s
Compensation Commissioner (the commissioner) found that Ortiz suffered no
PPD from the fall that occurred while in the course of his employment.2 With the
permanent-disability issue as the focus, Ortiz appeals from the district court
affirmance of the final agency decision. We affirm.
Factual Background and Procedural History.
Ortiz was hired by Loyd Roling Construction (Roling) in October 2008 to
perform various tasks including painting, roofing, driving truck, and feeding
livestock. He was paid a salary of $500 per week for his services, plus an
occasional cash payment. Ortiz suffered an injury while working on September
28, 2012. He fell approximately twelve feet off a roof, landing on his side. Taken
by ambulance to the University of Iowa Hospital, he was evaluated for complaints
of chest and left arm pain. Ortiz underwent X-rays of the chest, pelvis, left
shoulder, and left upper extremity, as well CT scans of the chest and cervical spine.
The scan of his chest revealed left pneumothorax and rib fractures, and the X-rays
revealed a mid-shaft fracture of the left humerus with a radial nerve palsy in the
left arm. In the trauma clinic, the doctor placed a chest tube as a result of the
1 Ortiz also claimed another work injury to his leg, but that claim for benefits is not
addressed in this appeal.
2 The decision also awarded temporary total disability benefits and a penalty
benefit of $500 and denied requests for medical expenses and alternate medical
care.
3
pneumothorax. A closed reduction with splinting of the humerus fracture was
performed, and Ortiz was provided a cock-up splint and physical therapy. After
five days in the hospital, he was discharged with therapy instructions.
Ortiz continued to experience discomfort in his arm. Seeking an answer for
the pain, he returned to the orthopedics department at the hospital on December
12, 2012, for possible surgical intervention on his left arm. At this visit, Ortiz
complained of some left-sided chest, neck, and shoulder pain that started the
previous week. Attributing some of his pain to carrying a heavy arm rest around
his neck while he walked, the doctor recommended Ortiz stop using that aid while
walking. The doctor concluded that surgery was needed to repair the nonunion of
the humeral fracture of the left arm. On January 28, 2013, Dr. Lawrence Marsh
performed an open reduction and internal fixation surgery on the humeral fracture,
inserting a plate and screws. By August 21, 2013, X-rays revealed a healed
humeral fracture, which had good fixation. The notes show that Ortiz’s radial nerve
palsy was also resolving despite his continuing complaints of pain. Ortiz was also
treated by Dr. Douglas Sedlacek in October and received injections for pain in his
shoulder and left upper extremity. Ortiz reported a “tremendous amount of relief”
from the injections.
Roling reached out to Ortiz and offered light-duty work compliant with the
restrictions last given by Ortiz’s doctors. Ortiz avoided the offer and, when
pressed, over-stated his lifting limitations, asserting he could only lift two to three
pounds instead of the twenty pounds suggested by the treating doctors. Ortiz
never returned to work with Roling.
4
After Ortiz switched physical therapy providers in the fall of 2013, he
reported dramatic improvement in his strength and range of motion. He completed
the physical therapy by January 2014.
Dr. Joseph Chen at the University of Iowa Hospital evaluated Ortiz in early
2014. Ortiz continued to complain of pain at each of his doctor appointments, and
it was recommended he complete a functional capacities evaluation (FCE) in
February 2014. The evaluator, John Kruzich, believed that Ortiz failed to give
maximum voluntary effort during evaluation, provided a highly inconsistent effort
during the objective testing, and failed the validity criteria. The FCE noted that the
pain questionnaires indicated symptom magnification. Likewise, the high pain
reports during the exam were inconsistent because there were minimal or no
demonstrated pain behaviors. For example, in the Kruzich report, he opined
[Ortiz] was able to lift on average nearly twice the amount of weight
at the conclusion of testing as he was able to lift at the beginning of
testing. Presumably the client, if indeed in a significant amount of
pain, would lift the same or considerably less weight as testing
proceeded and pain levels increased. Similar to the previously
mentioned published research concerning the use of this test the
only explanation for the substantial variation in the claimant’s
maximum lifting abilities is abnormal test behavior.
Ortiz saw Dr. Chen again in March after this FCE testing. Again, Ortiz reported
intense pain with the use of his left arm. Dr. Chen reviewed the FCE noting
“grossly inconsistent effort [by Ortiz] on a variety of scales.” When Dr. Chen
assessed Ortiz, he noted Ortiz was “in no distress.” Strength, coordination, and
muscle stretch reflexes were normal in the upper extremities bilaterally. The doctor
told Ortiz he had “chronic myofascial left arm pain . . . due to increased central
nervous system hyperexcitabiity” that he had to learn to manage but that the pain
5
should not limit his usual activities. With full range of motion and strength, Dr.
Chen found no permanent impairment and instructed Ortiz to return to full work
duties with no restrictions. Dr. Chen determined that Ortiz had “no ratable
impairment according to AMA[3] Guides to the Evaluation of Permanent
Impairment, 5th Edition.”
From March until June of 2014, Ortiz worked at a hotel in the Iowa City area.
Otherwise, Ortiz’s work history after the initial injury is unknown.
In June 2014, Ortiz underwent an independent medical examination (IME)
with Dr. Mark Taylor for Ortiz’s use in the worker’s compensation case. Dr. Taylor
discounted the results of the FCE and determined Ortiz had permanent injury from
the September 2012 fall. Using the AMA guidelines, Dr. Taylor opined that Ortiz
had a left upper extremity impairment rating of sixteen percent and a ten percent
permanent disability of the whole body. Dr. Taylor provided permanent impairment
ratings as follows: three percent of the left upper extremity for loss of elbow motion;
six percent of the left upper extremity for loss of shoulder motion; three percent of
the left upper extremity for the sensory deficits of the radial nerve palsy; and four
percent of the left upper extremity for the weakness related to the radial nerve
palsy. Dr. Taylor also recommended permanent restrictions. Contrary to Kruzich’s
FCE report addressing Ortiz’s abnormal testing behavior, Dr. Taylor believed pain
caused Ortiz to perform poorly on the functional examination.
In an opinion letter dated November 20, 2014, Dr. Marsh determined that
Ortiz was at maximum medical improvement (MMI) for his work injury. He agreed
3 AMA is an acronym for American Medical Association.
6
with Dr. Chen that Ortiz had no work restrictions. Future medical treatment was
not required. The report also referenced Ortiz’s radial nerve injury and his ongoing
complaints of pain. Dr. Marsh opined that the radial nerve injury had “improved by
objective measures and clinical presentation.” As for the pain complaints, the
doctor offered that the pain might be consistent with ongoing nerve dysfunction,
not necessarily attributable to a radial nerve injury. Yet, Dr. Marsh confirmed
“given the good recovery of function and the amount of time that has passed, it is
unlikely that any intervention or treatment is likely to change Mr. Ortiz’s complaints
of possibly neuritic pain.” Dr. Marsh discounted the opinions of Dr. Taylor, as Dr.
Chen had done in his notes.
Ortiz petitioned for benefits from the Worker’s Compensation Division, and
in January 2016, a deputy commissioner wrote a detailed thirty-four page
arbitration decision. Among other findings, the deputy commissioner found that
Ortiz failed to prove a permanent disability arising from his work fall. Notably, the
deputy commissioner determined Ortiz was not a credible witness and that the
opinions of Dr. Chen and the other treating doctors were more convincing than the
IME doctor used by Ortiz. In a final agency decision, the commissioner reached
“the same analysis, findings and conclusions as those reached by the deputy
commissioner.” The decision affirmed all facets of the arbitration decision and
found that Ortiz failed to carry his burden of proof that he sustained a permanent
disability. Ortiz appealed to the district court,4 focusing the appeal on the question
of the permanent-disability determination.
4Ortiz first petitioned for judicial review in September 2017. Because of perceived
procedural failures involving improper service under Iowa Code section 17A.19(2)
7
Operating in an appellate capacity, the district court affirmed the
commissioner’s ruling, finding that substantial evidence supported the finding Ortiz
did not sustain a permanent disability and that the decision of the commissioner
was not illogical, irrational, or wholly unjustifiable. Yet the district court observed
that “it does strike the Court as unusual that very serious injuries of the nature
sustained in this case would result in no permanent disability.”
Ortiz appeals. He attacks the commissioner’s decision from three angles.
First, he claims the commissioner erred as a matter of law by only considering the
AMA guidelines to determine permanency. Next, Ortiz argues the commissioner
misapplied law to fact by failing to consider chronic pain as sufficient evidence of
a change in physiological capacity in a scheduled-member case. And finally,
because the district court found Ortiz suffered from chronic pain, Ortiz maintains
the commissioner’s decision to deny permanent disability is not supported by
substantial evidence.
Standards of Review.
Iowa Code chapter 17A governs judicial review of an agency decision. See
Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 256 (Iowa 2012). Under the Act, we
may only interfere with the commissioner’s decision if it is erroneous under one of
the grounds enumerated in the statute and a party’s substantial rights have been
prejudiced. See id.; see also Iowa Code§ 17A.19(10). Under Iowa Code section
(2016), the case was dismissed. The Iowa Supreme Court reversed the dismissal
(and our affirmance of it), finding that emailing the petition to opposing counsel
within the ten days was proper service. Ortiz v. Loyd Roling Constr., 928 N.W.2d
651, 652 (Iowa 2019).
8
17A.19(10), our standard of review depends on the aspect of the agency’s decision
that forms the basis of the petition for judicial review. See Meyer v. IBP, Inc., 710
N.W.2d 213, 219 (Iowa 2006). If an agency has been clearly vested with the
authority to make factual findings on a particular issue, then a reviewing court can
only disturb those factual findings if they are “not supported by substantial
evidence in the record before the court when that record is reviewed as a whole.”
Iowa Code § 17A.19(10)(f); see also Meyer, 710 N.W.2d at 218. This review is
limited to the findings that were actually made by the agency, not other findings
that the agency could have made. Meyer, 710 N.W.2d at 218. When the
application of law to fact has been clearly vested in the discretion of an agency, a
reviewing court may only disturb the agency’s application of the law to the facts of
the particular case if that application is “irrational, illogical, or wholly unjustifiable.”
Iowa Code § 17A.19(10)(m); see also Burton, 813 N.W.2d at 256.
Analysis.
It is undisputed Ortiz suffered a work-related injury and was entitled to
temporary disability payments. But Ortiz requests payments for a permanent
partial disability because of his chronic pain and the changes sustained in his left
arm. He argues he was permanently injured and the commissioner erred by not
considering any evidence beyond the AMA guidelines5 when determining the
extent of permanent disability. He contends that had the commissioner considered
all of the evidence in the record, there would be a finding of permanent disability.
5Iowa Administrative Code section 876–2.4 adopts “The Guides to the Evaluation
of Permanent Impairment, Fifth Edition, published by the American Medical
Association . . . for determining the extent of loss or percentage of impairment for
permanent partial disabilities.”
9
Whether there was error as a matter of law to only apply AMA guidelines
and not consider lay testimony about pain.
To begin, Ortiz frames the legal question before us as one of first
impression. He asks “whether a finding of chronic pain in the arm—in and of
itself—is legally sufficient to award at minimum one percent (1%) permanent
disability despite the absence of a numerical rating pursuant to the AMA
guidelines.” Ortiz urges that the AMA guidelines are merely a guide for disability
determinations, and he points to the Iowa Supreme Court’s decisions in Terwilliger
v. Snap-On Tools Corp., 529 N.W.2d 267, 273 (Iowa 1995), and Miller v. Lauridsen
Foods, Inc., 525 N.W.2d 417, 421 (Iowa 1994), which allow for the use of non-
AMA evidence to arrive at a functional disability rating.
The parties agree the agency was to decide the functional disability of
Ortiz’s scheduled injury. And as Terwilliger states, “The law requires the
commissioner to consider all evidence, both medical and nonmedical, in arriving
at a disability determination.” 529 N.W.2d at 273. Functional disability is arrived
at by determining the loss of physiological capacity of the body part. Miller, 525
N.W.2d at 420 (citing Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 815
(Iowa 1994)). The AMA guidelines 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 rules specifically allow the commissioner to consider
other competent medical evidence when determining the percentage of permanent
partial disability resulting from a scheduled injury. See Westling v. Hormel Foods
Corp., 810 N.W.2d 247, 252 (Iowa 2012). In a case involving a scheduled injury,
if there is a causal connection between a work-related injury and a functional
10
impairment, the statute allows the commissioner to find a permanent partial
disability. Id.While the commissioner must consider other evidence, the agency does not
have to list every fact in the record and explain if it was accepted or rejected.
Schutjer v. Algona Manor Care Ctr., 780 N.W.2d 549, 560-61 (Iowa 2010). Instead
the commissioner must provide a decision that is detailed enough to show how
conflicting evidence was evaluated. Id. The commissioner shall include both “an
explanation of why the relevant evidence in the record supports each material
finding of fact” and conclusions of law that are “supported by cited authority or by
a reasoned opinion.” Iowa Code § 17A.16(1). The arbitration decision, affirmed
by the commissioner, contained factual detail outside of the AMA guidelines
including how the injury occurred and the opinions of Mr. Ortiz’s treating doctors.
Unlike in Lauridsen Foods, where lay testimony was excluded, here the deputy
considered all testimony offered. 525 N.W.2d at 417.
Ortiz asks that we remand the case back to the commissioner and instruct
him to utilize the correct legal precedent. We agree with the district court and find
the commissioner applied the appropriate legal standards to the facts and also
considered the lay testimony related to the subjective complaints of pain. We
decline to overturn the decision under this theory.
Was there a misapplication of law to fact by failing to consider chronic pain
as sufficient evidence of a change in physiological capacity?
Ortiz next argues that a finding of chronic pain is sufficient per se to show a
change in physiological capacity, meaning the commissioner’s decision was
irrational, illogical, wholly unjustifiable, or otherwise unreasonable, arbitrary, and
11
capricious. We disagree. A decision is irrational when it is not governed by reason,
illogical when it is devoid of logic, or unjustifiable when it has no foundation in fact
or reason. See Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417,
432 (Iowa 2010). “Functional disability is arrived at by determining the impairment
of the employee’s body function. This disability is limited to the loss of the
physiological capacity of the body or body part.” Mortimer v. Fruehauf Corp., 502
N.W.2d 12, 14 (Iowa 1993). Ortiz argues that courts should look to the plain
meaning of physiological loss to determine if pain can support a finding of loss.
Yet, Ortiz referenced Taber’s Cyclopedic Medical Dictionary’s definition as
“concerning body function.”
The Iowa Supreme Court has addressed the tension between function and
complaints of pain in this same context. In Robbennolt v. Snap-On Tools Corp.,
the court noted that the commissioner is not required to award disability beyond
that of the AMA guidelines simply because the claimant is complaining of pain or
fatigue. 555 N.W.2d 229, 234 (Iowa 1996) (finding “there is no rule of law that
requires an award greater than the impairment rating determined by the AMA
guidelines where a claimant makes complaints of pain”). Dr. Chen evaluated Ortiz
under the AMA guidelines and found no permanent disability.6 Furthermore, the
question of Ortiz’s pain level was disputed. While Ortiz had a medical doctor
evaluate his condition, including his pain, other doctors contradicted those
conclusions. Dr. Marsh and Dr. Chen both released Ortiz with no restrictions.
6 Following a 2017 amendment, the Iowa Code now states: “[W]hen determining
functional disability . . . the extent of loss or percentage of permanent impairment
shall be determined solely by utilizing the [AMA guidelines].” 2017 Iowa Acts ch.
23, § 9 (codified at Iowa Code § 85.34(2)(x)).
12
Arguably, the medical providers believed the subjective pain complaints were not
limiting Ortiz’s functional capacity. Additionally, the FCE performed by Kruzich
indicated symptom magnification leading to credibility questions about Ortiz.
Ultimately, Dr. Chen was found credible, and he determined even with complaints
of pain Ortiz would not suffer any functional limitation by using his arm normally.
The deputy commissioner noted
Claimant has claimed permanent disability to his left arm, left
shoulder, neck, head, and chest, as well as his mental health.
Claimant certainly suffered with a fracture of the left humerus,
requiring placement of hardware, and a radial nerve palsy injury.
However, Dr. Chen opined claimant sustained no ratable impairment
as a result of these conditions. Dr. Taylor opined claimant sustained
ratable impairment, but did so in spite of FCE findings which
rendered examination results questionable. The undersigned is
bothered by Dr. Taylor’s disregard of the FCE results and the
determination of Mr. Kruzich that claimant’s FCE results could only
be described as demonstrating abnormal testing behavior, with signs
of symptom magnification. Mr. Kruzich convincingly rejected Dr.
Taylor’s assertion claimant’s poor FCE performance could be
attributable to increased pain complaints. As. Dr. Taylor bases his
permanent impairment ratings upon measures subject to
manipulation and fails to adequately explain claimant’s poor
performance at FCE, the undersigned determines the opinions of Dr.
Taylor are entitled to little weight. Having provided greater weight to
the opinion of Dr. Chen, in conjunction with the invalid FCE findings
of Mr. Kruzich, it is determined claimant has failed to prove he
sustained permanent disability to his left arm.
The deputy commissioner was in the best position to evaluate all this
evidence and make credibility findings. And there were red flags supporting a lack
of effort and candor by Ortiz. After the medical provider developed his work
restrictions, Roling offered light duty work to Ortiz commensurate with those
restrictions. Ortiz refused the work and then exaggerated the medical restriction
on lifting of twenty pounds, telling Roling he could only lift two pounds. The FCE
test referenced his failure to give maximum effort and offered inconsistent findings
13
for a pain condition where he lifted more towards the end of the testing as opposed
to the beginning, making it difficult to confirm Ortiz’s actual function. Medical
providers noted the “overt and magnified pain behaviors and the failed validity
criteria on the FCE.” And the deputy commissioner was able to see, hear, and
evaluate the testimony of Ortiz in real time. We do not find the commissioner’s
decision to be irrational, illogical, wholly unjustifiable, or otherwise unreasonable,
arbitrary, and capricious, and we see no reason to overturn their determination.
Substantial evidence test.
Finally, Ortiz argues substantial evidence does not support the
commissioner’s decision to deny permanent disability. In making this argument,
Ortiz again relies on his chronic pain complaints to overcome the AMA guideline
finding by Dr. Chen. The possibility of drawing two inconsistent conclusions from
the same evidence does not prevent the agency’s decision from being supported
by substantial evidence. Henry v. Iowa Dep’t of Job Serv., 391 N.W.2d 731, 734
(Iowa Ct. App. 1986). As discussed above, the treating physicians and the FCE
evaluator offered opinions supporting the commissioner’s findings. We read the
agency’s findings broadly and liberally with an eye to upholding rather than
defeating its decision. See IBP, Inc. v. Al–Gharib, 604 N.W.2d 621, 632 (Iowa
2000). And, we give deference to the commissioner’s credibility determinations.
Broadlawns Med. Ctr. v. Sanders, 792 N.W.2d 302, 306 (Iowa 2010).
“[F]acts determined by the . . . commissioner have the same effect as a jury
verdict; and we may not interfere with such findings where there is a conflict in the
evidence or when reasonable minds may disagree as to the inferences to be drawn
from the evidence . . . .” Langford v. Kellar Excavating & Grading, Inc., 191 N.W.2d
14667, 668 (Iowa 1971). As the district court correctly concluded, the deputy not only
considered Dr. Chen’s determination of no ratable impairment but also his other
opinions about Ortiz’s condition. No restrictions were given to Ortiz, and no future
treatment was necessary. The deputy gave great weight to the FCE report and
concluded that unless corroborated by the evidence, Ortiz’s testimony was entitled
to little weight. We find substantial evidence supports the commissioner’s
determination. See Schutjer, 780 N.W.2d at 557-58 (“Our assessment of the
evidence focuses not on whether the evidence would support a different finding
than the finding made by the commissioner, but whether the evidence supports the
findings actually made.”). We find substantial evidence supports the finding of no
permanent disability.
For all of the reasons developed above, we affirm the commissioner’s
ruling.
AFFIRMED.