Angela Harper v. Lensing, LTD, d/b/a Lensing Funeral Home and United Fire & Casualty Company

IN THE COURT OF APPEALS OF IOWA
No. 17-1615
Filed July 18, 2018
ANGELA HARPER,
Plaintiff-Appellant,
vs.
LENSING, LTD, d/b/a LENSING FUNERAL HOME and UNITED FIRE &
CASUALTY COMPANY,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Angela Harper appeals a district court ruling on her petition for judicial
review of a determination of the workers’ compensation commissioner.
AFFIRMED.
Matthew D. Dake of Wertz, Dake & Anderson, P.C. Cedar Rapids, for
appellant.
Cory D. Abbas of Patterson Law Firm L.L.P., Des Moines, for appellees.
Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2
SCOTT, Senior Judge.
Angela Harper appeals a district court ruling on her petition for judicial
review of a determination of the workers’ compensation commissioner. She
contends the district court erred in failing to remand the case to the commissioner
to provide a “logical pathway” outlining the commissioner’s industrial-disability
determination.1
1
This is the only contention for which Harper provides this court with an adequate
argument pursuant to Iowa Rule of Appellate Procedure 6.903(2)(g). Harper additionally
argues: (1) the court erred in failing to remand the case to require the commissioner to
address whether Harper, after her injury, returned to full-time employment or whether she
returned to accommodated employment; (2) the failure to remand will deprive her of a
meaningful review-reopening proceeding, which in turn violates her right to due process
of law; (3) the court erred in affirming the commissioner’s decision to not award certain
medical expenses; (4) the court erred in affirming the commissioner’s denial of healing-
period benefits flowing from a subsequent injury and the commissioner’s denial of penalty
benefits as a result of the alleged wrongful denial of the same.
In support of these contentions, Harper provides her version of the underlying facts
and conclusory statements in support of her allegations of error. On each of these issues,
however, Harper provides us with very few, and on some issues no, citations to legal
authorities to support her position on appeal. Of the citations to legal authority that are
actually provided, they are only referenced in passing, without any analysis of such legal
authority or how it applies to this case or is otherwise on point. To reach the merits of
these issues “would require us to assume a partisan role and undertake the appellant’s
research and advocacy. This role is one we refuse to assume.” Ingraham v. Dairyland
Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974). We therefore deem the arguments
waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an
issue may be deemed waiver of that issue.”); Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa
1996) (“[W]e will not speculate on the arguments [a party] might have made and then
search for legal authority and comb the record for facts to support such arguments.”);
Ingraham, 215 N.W.2d at 240; see also City of Marquette v. Gaede, 672 N.W.2d 829, 835
(Iowa 2003); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 184 (Iowa 1980); cf.
Hanson v. Harveys Casino Hotel, 652 N.W.2d 841, 843–44 (Iowa Ct. App. 2002).
Although Harper does provide some authority to support the second component of her
final argument, because we do not consider the first component of that argument, whether
the denial of healing-period benefits was appropriate, neither do we consider the second
component, whether penalty benefits would have been appropriate. In any event,
although Harper largely veils the aforementioned arguments as substantial-evidence
challenges, the substance of the arguments reveals they really flow from Harper’s
disagreement with the agency’s weighing of the evidence. We are not entitled to reweigh
the evidence in a substantial-evidence review. See Arndt v. City of Le Claire, 728 N.W.2d
389, 394–95 (Iowa 2007). We also do not consider any arguments raised for the first time
in Harper’s reply brief. See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992).
3
I. Background Facts and Proceedings
Harper was employed by Lensing Funeral Home (Lensing) as a funeral
home director. She was involved in a motor-vehicle collision on March 23, 2012,
while working in the course of her employment with Lensing. Harper was
subsequently diagnosed with various conditions by a number of medical
professionals.2 She returned to work in June, part time, generally working four to
six hours per day. Harper returned to working full, eight-hour days in October. As
a result of one of the medications Harper was taking at this time, she was unable
to work the on-call night shift. Although Harper’s general duties at Lensing were
modified, she worked forty or more hours per week.
Harper continued to work for Lensing on a full-time basis until September
2013, when she suffered a fall while carrying laundry down the stairs in her home.
After this fall, Harper did not return to work until October 6, upon which she was
placed on light duty. Her restrictions were lifted on November 18. In early 2014,
Harper was hospitalized for pneumonia, which was unrelated to the original work
injury, and missed more work. Specifically, between late January and early March,
Harper missed twenty-four of twenty-seven work days. After recovering, Harper
requested reduced hours upon her return to work. Lensing ultimately decided to
terminate Harper’s employment, citing the fact that Harper had exhausted all of
her leave and Lensing’s desire to have a full-time employee in her position.
2
At the arbitration hearing, Harper generally testified her symptoms included depression,
anxiety, headaches, dizziness, vertigo, vision issues, balance issues, photophobia, and
issues with her ability to process information. However, Harper, prior to the March 2012
motor-vehicle collision, received treatment for anxiety, fatigue, depression, dizziness, and
headaches.
4
In March 2014, Harper filed a petition with the workers’ compensation
commissioner alleging she was owed additional benefits. The parties
subsequently stipulated the March 2012 injury was a cause of a permanent partial
industrial disability, but did not agree as to the amount of benefits Harper was
entitled to as a result thereof. Prior to hearing, Lensing voluntarily paid Harper
roughly seventeen weeks of permanent-disability benefits.3 Lensing disputed
Harper’s entitlement to any benefits beyond that already voluntarily paid, arguing
Harper’s industrial disability was minimal.
Following an arbitration hearing, the deputy commissioner noted Harper’s
impairment to the body as a whole amounted to an industrial disability, but
concluded Harper was not entitled to any additional permanent-disability benefits
beyond what Lensing previously paid. Harper appealed this ruling to the
commissioner, who affirmed “the deputy commissioner’s finding that [Harper] is
not entitled to any additional permanent disability benefits beyond what was
voluntarily paid by [Lensing] prior to the arbitration hearing.” In his ruling, the
commissioner noted his agreement with the deputy commissioner that the
causation opinions of two experts, Dr. Robert Jones and Dr. Robert Broghammer
were entitled to greater weight than the causation opinions of other medical
providers who determined the March 2012 injury caused a more substantial
permanent disability. Harper moved for a rehearing, requesting, among other
3
In the hearing report, the parties stipulated the applicable rate of compensation based
on Harper’s circumstances was $529.10 per week. The parties additionally stipulated that
Lensing, prior to the hearing, paid Harper fifteen weeks of benefits at this rate. The
evidence presented, however, shows that in early September 2014, Lensing voluntarily
paid Harper $9020.13 in permanent-disability benefits. Applying the stipulated rate of
compensation, this would amount to just under 17.05 weeks of benefits which, in turn,
amounts to a 3.4% industrial disability. See Iowa Code § 85.34(2)(u) (2014).
5
things, a more thorough evaluation of the industrial-disability determination in light
of the parties’ stipulation Harper sustained a permanent disability. In his rehearing
decision, the commissioner clarified that the stipulation that Harper suffered a
permanent disability was accepted, but noted Harper’s “industrial disability, or loss
of earning capacity, did not exceed permanent partial disability benefits already
paid.” The commissioner also repeated his reliance on the medical opinions of Dr.
Jones and Dr. Broghammer.
Harper filed a petition for judicial review. Following a hearing, the district
court affirmed the decision of the commissioner and denied Harper’s petition,
concluding “the agency’s decision is sufficient as it is possible to deduce the
agency’s legal conclusions and findings that [Harper] suffered minimal industrial
disability and was not entitled to benefits in addition to those already paid.” The
court denied Harper’s subsequent motion to enlarge or amend, and this appeal
followed.
II. Standard of Review
“Judicial review of agency decisions is governed by Iowa Code section
17A.19.” Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 530 (Iowa 2017)
(quoting Kay-Decker v. Iowa State Bd. of Tax Review, 857 N.W.2d 216, 222 (Iowa
2014)); accord Warren Props. v. Stewart, 864 N.W.2d 307, 311 (Iowa 2015). The
district court acts in an appellate capacity in judicial-review proceedings. Iowa
Med. Soc’y v. Iowa Bd. of Nursing, 831 N.W.2d 826, 838 (Iowa 2013) (quoting City
of Sioux City v. GME, Ltd., 584 N.W.2d 322, 324 (Iowa 1998)). On appeal, this
court “appl[ies] the standards of section 17A.19(10) to determine if we reach the
same results as the district court.” Brakke, 897 N.W.2d at 530 (quoting Renda v.
6
Iowa Civil Rights Comm’n, 784 N.W.2d 8, 10 (Iowa 2010)); accord Des Moines
Area Transit Auth. v. Young, 867 N.W.2d 839, 842 (Iowa 2015). Relief in a judicial-
review proceeding is appropriate only “if the agency action prejudiced the
substantial rights of the petitioner and if the agency action falls within one of the
criteria listed in section 17A.19(10)(a) though (n).” Brakke, 897 N.W.2d at 530.
“Our review of a decision of the workers’ compensation commissioner
varies depending on the type of error allegedly committed by the commissioner.”
Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa 2010). Where, as
here, the alleged “error is one of fact, we must determine if the commissioner’s
findings are supported by substantial evidence.” Id.; see Iowa Code
§ 17A.19(10)(f). This court is not entitled to reweigh the evidence in a substantial-
evidence review—we only determine whether substantial evidence supports the
agency finding. Arndt, 728 N.W.2d at 394–95. “Evidence is substantial when a
reasonable person could accept it as adequate to reach the same findings.”
Bearinger v. Iowa Dep’t of Transp., 844 N.W.2d 104, 106 (2014) (quoting Ludtke
v. Iowa Dep’t of Transp., 646 N.W.2d 62, 65 (Iowa 2002)). “If the agency’s findings
are supported by substantial evidence, those findings are binding upon us.” Fed.
Express Corp. v. Mason City Human Rights Comm’n, 852 N.W.2d 509, 510–11
(Iowa Ct. App. 2014).
III. Analysis
Harper contends the agency improperly failed to provide a “logical pathway”
outlining its industrial-disability determination and the district court improperly
failed to remand the case to the agency to correct the same. Specifically, Harper
7
complains the agency pulled its industrial-disability finding “out of thin air, with no
explanation.”
The commissioner has a duty to state the evidence relied upon and to detail
the reasons for the conclusions reached. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621,
633 (Iowa 2000). Additionally, the commissioner “must sufficiently detail [his or]
her decision to show the path [he or] she has taken through conflicting evidence.”
Id. at 633–34. These requirements are “satisfied if the reviewing court is able to
determine with reasonable certainty the factual basis on which the administrative
officer acted.” Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 2000).
The agency “decision is sufficient if ‘“it is possible to work backward [from the
agency’s written decision] and to deduce what must have been [the agency’s] legal
conclusions and [its] findings.”’” Al-Gharib, 604 N.W.2d at 634 (alterations in
original) (quoting Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 909 (Iowa
1987)). “To do so is to recognize our duty to broadly and liberally apply the
commissioner’s findings to uphold rather than defeat the commissioner’s decision.”
Id. The commissioner is not required to set out verbatim all the testimony or
evidence in its ruling, and a losing party cannot successfully urge the
commissioner did not consider all the evidence just because the commissioner
specifically refers to only some of the evidence. Myers, 592 N.W.2d at 356. “It is
permissible for the reviewing court to determine the commissioner ‘could have’ or
‘might have’ considered certain pieces of supporting evidence.” Id. at 357. “The
commissioner, as the fact finder, determines the weight to be given to any expert
testimony,” and “[s]uch weight depends on the accuracy of the facts relied upon by
the expert and other surrounding circumstances.” Sherman v. Pella Corp., 576
8
N.W.2d 312, 321 (Iowa 1998). “The commissioner may accept or reject the expert
opinion in whole or in part.” Id.
In his appeal and rehearing rulings, the commissioner specifically noted his
reliance on the expert opinions of Dr. Jones and Dr. Broghammer in reaching his
ultimate determination that Harper’s industrial disability was minimal, and Harper
was therefore not entitled to permanent partial disability benefits beyond those
already paid by Lensing. Likewise, the deputy commissioner detailed his
reasoning for rejecting the other medical opinions Harper believes should control.
Both doctors’ reports detail why each believed Harper’s industrial disability
was minimal or non-existent and are substantial evidence in support of the
commissioner’s ultimate conclusion that Harper’s industrial disability flowing from
the March 2012 collision was minimal. See Ludtke, 646 N.W.2d at 65 (“Evidence
is substantial when a reasonable person could accept it as adequate to reach the
same findings. Conversely, evidence is not insubstantial merely because it would
have supported contrary inferences, or because two inconsistent conclusions
could be drawn from it.”); see also Arndt, 728 N.W.2d at 395 (“The reviewing court
only determines whether substantial evidence supports a finding ‘according to
those witnesses whom the [commissioner] believed.’” (alteration in original)
(quoting Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa
1996))). Because we are “able to determine with reasonable certainty the factual
basis on which the [commissioner] acted,” Myers, 592 N.W.2d at 356, we conclude
the commissioner sufficiently showed the path he took through the conflicting
evidence. See Al-Gharib, 604 N.W.2d at 633. “Although a fact finder might have
reached a different and inconsistent conclusion from this record, our rules mandate
9
we are nevertheless bound by the conclusion the commissioner reached.” Id. at
635. Finally, although the commissioner’s industrial-disability determination was
not as precise as Harper desires, we note the “commissioner is not required to fix
disability with precise accuracy.” Myers, 592 N.W.2d at 357. The commissioner’s
determination that Harper was not entitled to any additional industrial-disability
benefits beyond what Lensing already paid was sufficient. Having considered the
only issue properly presented, we find no error in the district court’s decision not
to remand to the agency and affirm the district court’s denial of Harper’s judicial-
review petition.
AFFIRMED.