Opinion
No. 0-336 / 99-1236.
Filed November 20, 2000
Appeal from the Iowa District Court for Polk County, LINDA R. READE, Judge.
The petitioner appeals from the district court's ruling on judicial review affirming the industrial commissioner's review-reopening decision denying the petitioner additional worker's compensation benefits. The petitioner claims that: (1) the commissioner's decision which denied the award of additional benefits for an alleged increase in industrial disability was not supported by substantial evidence, (2) she was entitled pursuant to Iowa Code section 85.27 (1995) to have a prescription charge account for medicine needed for her treatment allegedly related to her work-related injury and for the payment of unpaid charges for such medication, and (3) the district court abused its discretion in refusing to remand the case pursuant to Iowa Code section 17A.19(7) for the hearing of additional evidence by the commissioner. AFFIRMED.
Mary S. Bernabe, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Julie Burger, Assistant Attorney General, for appellees.
Heard by VOGEL, P.J., and MILLER and HECHT, JJ.
Helen Clay appeals from the district court's ruling on judicial review affirming the industrial commissioner's review-reopening decision denying her additional workers' compensation benefits. Clay contends: (1) the commissioner's decision denying the award of additional benefits for the alleged increase in industrial disability was not supported by substantial evidence; (2) she was entitled to have a prescription charge account for medication needed for the treatment of the alleged work-related injury and for the payment of unpaid charges for such medication, pursuant to Iowa Code section 85.27; and (3) the district court abused its discretion in refusing to remand the case for the commission to hear additional evidence, pursuant to Iowa Code section 17A.19(7). We affirm.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS
Helen Clay was employed as secretary and administrative assistant for Respondent-Appellee the Iowa Department of Education. In August of 1990 she fell on a wet floor at work and sustained a back injury. Clay applied for workers' compensation benefits. In an arbitration decision filed February 3, 1994 Clay was awarded healing period benefits, 125 weeks of permanent partial disability, based on a twenty-five percent industrial disability, medical costs and alternate medical care. The deputy commissioner found that the fall had aggravated a pre-existing degenerative disc disease in her back. The decision was affirmed and adopted as final agency action by the commissioner on June 23, 1994.
Clay tried a number of treatments with several different doctors for her back, however she felt none of them were giving her sufficient relief. All of the physicians agreed she is not a candidate for surgery. In addition to her back problems, it is undisputed that Clay had several other health and medical problems, including a long-standing history of severe obesity, arthritis in her hands, knees and ankles, and diabetes. Eventually Clay began to see Dr. Marc Hines, a neurologist in Ottumwa, Iowa, in August of 1993. Although Dr. Hines was not "authorized" as a physician by the State of Iowa, the State paid for Clay's treatment by Dr. Hines pursuant to the order in the arbitration decision which thereby, in effect, made Dr. Hines an "approved" physician under Iowa Code section 85.27. Prior to treatment by Dr. Hines the State had directly paid for medication used in Clay's treatment through a prescription charge account. However, with her change to an "unapproved" physician, the State required Clay to pay for any medication prescribed herself, with subsequent reimbursement by the State after its review of the charge.
Clay filed a review-reopening petition on January 8, 1996, seeking to increase her award of industrial disability. Clay argued that the change in payment procedures by the State caused her a financial hardship due to the necessity she initially pay for her medications, and that her disability had substantially increased since the earlier decision, thus requiring an increase in disability benefits. In support of her position Clay submitted Dr. Hines' deposition testimony which stated that Clay had suffered additional disability since the initial decision awarding her benefits. Dr. Hines testified that in his opinion Clay is now having increased difficulties with low back pain and increased problems with hip and knee pain which he believed to be secondary to her abnormal posture and ambulation, all as a result of the work-related back injury Clay suffered in 1990.
The State offered contrary medical opinion testimony from Dr. Ernest Found, a physician who saw Clay at the University of Iowa Hospitals and Clinics Spine Center on February 8, 1996. Dr. Found indicated Clay suffered from no subsequent increase in disability due to her work injury and that her hip and knee pain was not related to her injury in 1990. Evidence presented by the State also showed that other health care professionals who had seen Clay did not notice any abnormal posture or ambulation. This evidence was contrary to Dr. Hines' opinion that such abnormalities existed and were part of a chain of causation leading to Clay's hip and knee problems.
The industrial commissioner filed her appeal decision in this review-reopening proceeding on July 23, 1998. She determined that Clay's increased disability was not caused by a work related injury and declined to award any additional benefits. Clay filed a petition for judicial review on August 12, 1998, challenging the commissioner's findings as unsupported by substantial evidence. She also claimed the department should pay certain outstanding prescription charges and should create a charge account for her future prescriptions, similar to the procedures followed prior to her treatment by Dr. Hines.
Clay also filed an application with the district court on November 2, 1998, seeking leave to present additional evidence to the commissioner pursuant to Iowa Code section 17A.19(7). Clay sought to present evidence that her physical condition had further deteriorated, that she had received additional medical care, and that she had left her position with the State. She argued this was all additional evidence which could not have been presented at the underlying hearing, the evidence was material, and her rights would be substantially affected and harmed if she were not allowed to present this additional evidence to the commissioner. The district court denied Clay's request, finding the additional evidence was neither material nor had Clay shown good cause why the evidence was not produced during the contested case proceedings.
The district court affirmed the industrial commissioner's appeal decision on July 9, 1999. The court determined there was substantial evidence to support the commissioner's findings that there was no causal connection between Clay's workplace injury and any increased disability since the initial award. The court also found there was substantial evidence for the commissioner to find Clay was not entitled to a prescription charge account under Iowa Code section 85.27, because she had not demonstrated a clear causal connection between the medicine prescribed by Dr. Hines and her workplace injury.
Clay now appeals the district court's ruling arguing there was not substantial evidence to support the commissioner's finding denying her additional benefits and that she is entitled to a prescription charge account. She also appeals the prior ruling by the district court denying her leave to present additional evidence to the commissioner, contending the court abused its discretion in denying the motion.
II. MERITS
A. Refusal to Allow Additional Evidence
Our review is limited to determining whether the district court abused its discretion in not ordering a remand to allow additional evidence before the agency. C.f. Interstate Power Co. v. Iowa State Commerce Com'n, 463 N.W.2d 699, 702 (Iowa 1990) (stating review is limited to determining whether the district court abused its discretion in ordering such a remand).
Once a petition for judicial review has been filed, the commissioner loses jurisdiction over the case to reopen it. Polson v. Meredith Publishing Co., 213 N.W.2d 520, 524 (Iowa 1973). The party seeking remand to present additional evidence must show that such evidence is material and there is good cause for failure to present the evidence earlier. See Iowa Code § 17A.19(7) (1997); Cedar Valley Leasing, Inc. v. Iowa Dept. of Revenue, 274 N.W.2d 357, 361-62 (Iowa 1979); Hollensbe v. Iowa Dept. of Job Service, 418 N.W.2d 77, 80 (Iowa App. 1987). This discretionary function of the court "permits the agency another opportunity to exercise its expertise and to affirm or modify its previous decision on the basis of the additional evidence" as well as promoting judicial efficiency. Reiter v. Iowa Dept. of Job Service, 327 N.W.2d 763, 767 (Iowa App. 1982).
Here the district court found the additional evidence Clay sought to present on remand failed both parts of the test. We agree with the district court's ruling and hold the district court did not abuse its discretion in denying Clay's application.
Clay did not file an appeal with the district court until August 12, 1998. Essentially all of the additional or "new" evidence Clay wished to present to the commissioner on remand was available to her before she filed her petition for judicial review, and was available to her while the case was under submission to the commissioner. Clay could have submitted a request to the agency to present additional evidence. She has offered no substantial reason why she did not.
Clay did not show good cause for failing to present the evidence earlier. Further, the evidence was not material to the fighting issue of causation as it did not indicate the changes in Clay's physical condition were related to her original workplace injury in 1990. Therefore, Clay failed to show either of the two elements she was required to show for remand, and the district court did not abuse its discretion in denying the application to present additional evidence.
B. Denial of Additional Disability Award
In reviewing this and the following issue, our review is not for abuse of discretion as it was on the preceding issue. Rather, our review, like that of the district court, is limited to correcting legal error. Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). In determining whether the district court erred in exercising its power of judicial review, we apply the standards of Iowa Code section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court. E.N.T. Associates v. Collentine, 525 N.W.2d 827, 829 (Iowa 1994). The commissioner's findings are akin to a jury verdict, and we broadly apply them to uphold the decision. Shank, 516 N.W.2d at 812. The industrial commissioner's findings are binding on this court if the evidence is in dispute or if reasonable minds can draw different inferences from the evidence. Gallardo v. Firestone Tire Rubber Co., 482 N.W.2d 393, 395 (Iowa 1992).
We may reverse, modify, or remand to the commissioner for further proceedings if that agency's action was affected by an error of law, or if it is not supported by substantial evidence when the record is viewed as a whole. Quaker Oates v. Ciha, 552 N.W.2d 143, 149-50 (Iowa 1996). Evidence is substantial if a reasonable mind would find it adequate to reach the same findings. Murrillo v. Blackhawk Foundry, 571 N.W.2d 16,17 (Iowa 1997). The commissioner's decision does not lack substantial evidential support merely because inconsistent conclusions could be drawn from the same evidence. Id. The ultimate question is not whether the evidence supports a different finding, but whether it supports the finding the commissioner actually made. Id.
Pursuant to Iowa Code section 86.14(2) the industrial commissioner is authorized to reopen an award of workers' compensation benefits to determine whether the condition of the employee warrants an end to, a diminishment of, or an increase of, previously awarded compensation. The claimant carries the burden of proving by a preponderance of the evidence that, subsequent to the date of the award under review, the claimant has suffered an impairment or lessening of earning capacity proximately caused by the original injury. Collentine, 525 N.W.2d at 829.
The necessary showing in a review-reopening proceeding may be made without proof of change in physical condition. We have recognized that industrial disability is the product of many factors, not just physical impairment. Other factors include age, education, experience, and inability, because of the injury, to engage in employment for which the employee is fitted.
Id. (citations omitted); see also Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434-35 (Iowa 1999).
The expert medical evidence in this case is very much in conflict. There appears to be a difference in opinion concerning the extent of Clay's current disability and there is a marked difference concerning whether any increase in physical impairment and decrease in earning capacity which may have occurred since the date of the award under review were proximately caused by the original injury. Dr. Hines testified for Clay that her back condition has deteriorated and she suffers from hip and knee problems which are secondary to her 1990 back injury. The State offered contrary expert testimony that Clay's hip and knee problems are unrelated to her previous injury and her back condition has not really changed except in accordance with the regular progression of her previously diagnosed degenerative condition.
Regarding Clay's hip and knee problems, Dr. Hines opined that the problems were due to her abnormal posture and ambulation which are secondary to her original back injury. Dr. Hines attributes approximately half of Clay's problems with her lower extremities to degenerative changes and weight, with the other half attributed to an antalgic limp and abnormal gait. Dr. Hines found an additional five percent whole body impairment.
In contrast, according to Dr. Found Clay's low back pain was aggravated by the 1990 injury but could not account for all of her current symptoms, and her hip and knee pain were not related to the 1990 injury. Additionally, Dr. Found only found Clay's gait to be "labored."
The question of causal connection is "essentially within the domain of expert testimony." Lithcote Co. v. Ballenger, 471 N.W.2d 64, 66 (Iowa App. 1991) (quoting Bodish v. Fisher, Inc., 257 Iowa 516, 519, 133 N.W.2d 867, 869 (1965)). Expert opinion testimony, even if uncontroverted, may be accepted or rejected, in whole or in part, by the trier of fact. Sandag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). It is within the commissioner's right to reject any evidence she considers less reliable than other contradictory testimony. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 273 (Iowa 1995).
The weight to be given such an opinion is for the finder of fact, in this case the commissioner, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances.
When an expert's opinion is based upon an incomplete history, the opinion is not necessarily binding upon the commissioner. The commissioner as trier of fact has the duty to determine the credibility of the witnesses and to weigh the evidence, together with other disclosed facts and circumstances, and then to accept or reject the opinion. Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995) (citations omitted).
Here the commissioner determined Dr. Found's opinion was to be given greater weight than Dr. Hines'. This was based on the fact Dr. Hines' opinion was somewhat inconsistent with known facts. During his deposition he appeared to change his diagnosis somewhat from a previous diagnosis which included osteoarthritis. He was apparently unaware of this previous diagnosis until during the deposition. Clearly the medical evidence in this case is in substantial conflict and reasonable minds could draw different inferences from the evidence. Therefore, we conclude there is substantial evidence in the record to support the commissioner's determination that Dr. Found's opinion is more persuasive.
We note that findings and opinions of other health care professionals tend to support Dr. Found's opinion as to the cause of Clay's hip and knee problems, while Dr Hines was alone in his causal connection finding. Neither Dr. Finan, Dr. Wirtz, nor physical therapist Karen Drake found Clay's ambulation or posture to be nearly as severe or as problematic as Dr. Hines did. In fact, Dr. Wirtz specifically noted Clay walked without an antalgic gait. Therefore, we agree with the district court's conclusion that the commissioner's determination that Clay has failed to prove the necessary causal nexus between her original injury and the subsequent physical change in her condition is supported by substantial evidence.
Clay argues there has also been a change in her earning capacity because her increased disability will significantly reduce her ability to earn wages in the future. However, the commissioner found that Clay has not proved a causal nexus between the original injury and accelerated degenerative changes in her hips and knee, a claim upon which her claim of additional loss of earning capacity is founded in part. The commissioner's finding is supported by substantial evidence.
We do note that at the time of hearing Clay's earnings had not diminished, and in fact were greater than at the time of the original injury. While current earnings are not dispositive of a claimed reduction in earning capacity, they are important evidence of whether the injury impaired the claimant's capacity to earn. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995). See also Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 617 (Iowa 1995) (referring with approval to the result in Collentine as having "strongly suggest[ed] that an injured employee's earning capacity for purposes of fixing the percentage of permanent partial disability is based on present conditions and does not focus on the employee's remaining working future in its entirety."). Clay's current earnings thus also lend support to the commissioner's decision.
Additionally, the testimony of Dr. Hines that Clay's increased physical disability was going to drastically diminish her ability to earn wages in the future is the only testimony supporting such a claim. Dr. Hines' opinion appears to be somewhat suspect. He is not a vocational expert, nor did he know of Clay's employment history prior to the original injury. Further, the testimony of Clay's direct supervisor, whose opinion in this matter would be founded on first-hand knowledge of Clay's job duties and employment circumstances, testified that Clay was in no jeopardy of losing her job despite the time she missed from work. We conclude the commissioner's determination that there was no showing of lost earning capacity tied to the original back injury is supported by substantial evidence in the record. The district court did not err in affirming this finding.
Clay also argues the original back injury itself has considerably worsened unexpectedly and that fact alone, regardless of whether her hip and knee problems are related to the original injury, justifies an increased industrial disability rating and award. The basis of this claim is Dr. Hines' testimony that Clay's condition has significantly worsened since he began treating her in 1993 and is not at all what he anticipated then. He also found an additional five percent whole body impairment.
It is not entirely clear from the record and Dr. Hines' testimony whether this five percent whole body rating is in addition to Clay's original twenty-five percent rating or the same rating only under a different AMA rating guide. However, based on our resolution of this matter whether Dr. Hines in fact found an additional five percent disability is not determinative.
Clay's original injury was diagnosed as a degenerative disc disorder. This diagnosis was the basis of her initial award of permanent partial disability benefits. The very nature of a degenerative disorder is that the condition will worsen over time. There is substantial evidence in the record to show that any worsening of Clay's back condition is nothing more than the natural progression of her previously diagnosed degenerative order.
We conclude the commissioner's determination that there is no causal connection between Clay's workplace injury and any worsening of the condition of her back, hips and knees that has occurred subsequent to the arbitration award is supported by substantial evidence in the record as a whole. Therefore, the district court committed no legal error in affirming the commissioner's decision that Clay was not entitled to additional weekly benefits.
C. Statutory Requirement of Prescription Account
The final issue on appeal is whether Clay is entitled to a prescription medication account to pay for the costs of her prescriptions. Clay contends that under Iowa Code section 85.27 her employer is required to furnish medical services and supplies for injuries compensable under workers' compensation. When Clay was seen by the physician selected by the State, provisions were made to accommodate her prescription pharmacy needs by establishing such an account. She argues the State should not have removed this accommodation when she decided to receive treatment from Dr. Hines, a physician not chosen by the State.
Section 85.27 does require that the employer furnish "reasonable" medical services and supplies for "all injuries compensable under this chapter or chapter 85A." This section further provides that the employer has the right to chose the care the employee receives and if the employee is dissatisfied with the care the employee is to communicate the basis of the dissatisfaction to the employer, after which the employer and employee may agree to alternate care or take the dispute before the commissioner for resolution. Iowa Code section 85.27 (1997). In the February 1994 arbitration decision the deputy commissioner approved Dr. Hines as Clay's physician, and this was affirmed on appeal to the commissioner.
The statute also provides that in the event charges are believed by the employer to be unnecessary or excessive they may be referred by the employer, insurance carrier, or health service provider to the commissioner for determination. The State asserts the reason the change in procedures was necessary when Clay switched her care to Dr. Hines is because it was unsure at that point whether there was a causal connection between some of the prescription charges and the work related injury. In other words it was questioning the necessity of the charges. Therefore, the procedures set forth in section 85.27 should have been followed by the State rather than simply not paying or indefinitely delaying payment of the charges.
Clay offered no statutory authority for her request that the State be ordered to set up an account for prescription costs, and the commissioner found such relief inappropriate. We agree. The employer has the right to challenge the causal connection or necessity. We believe, based on the evidence in the record, the State has a reasonable basis for questioning several of the prescription charges contested here. However, we agree with the agency that in the event of any further disputes as to whether prescription costs, or any other medical treatment submitted by Clay, is "necessary" or related to the work injury the State shall make use of the provisions of Iowa Code section 85.27 and Iowa Administrative Code section 876-10.3 to settle such disputes rather than merely refusing or indefinitely delaying payment. This is necessary in order to avoid undue inconvenience to Clay and violation of the spirit of the statute.
This directive includes the $183.91 in outstanding prescription charges Clay has specifically asked the court to order paid by the State. The State has alleged there is no medical evidence causally connecting these charges to Clay's work related injury and has refused to pay these charges. If the State believes these charges to be unnecessary or unrelated to the work injury it must under section 85.27 bring such charges to the commissioner for determination. Otherwise the State must pay the charges promptly and without further undue inconvenience to Clay.
III. CONCLUSION
We conclude the district court did not abuse its discretion in denying Clay's request for remand to the agency for the taking of additional evidence. We further conclude substantial evidence supports the commissioner's decision that Clay is not entitled to additional worker's compensation benefits based on her review-reopening petition. Therefore, the district court committed no error of law. The district court's rulings on Clay's application for leave to present additional evidence before the agency and her petition for judicial review are affirmed in their entirety. The State shall promptly submit any dispute concerning the $183.91 prescription charges to the commissioner or pay those charges.
AFFIRMED.