Opinion
No. 2-831 / 02-0264.
Filed December 11, 2002.
Appeal from the Iowa District Court for Linn County, THOMAS KOEHLER, Judge.
Claimant appeals from the district court's order on judicial review, which affirmed a workers' compensation decision that awarded him certain benefits, determined his industrial disability, and declined to assess a penalty against the employer. AFFIRMED.
Robert Rush of Rush Nicholson, P.L.C., Cedar Rapids, for appellant.
Peter Thill of Betty, Neuman McMahon, L.L.P., Davenport, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Claimant-appellant, Dino Enriquez, appeals from the district court's order on judicial review, which affirmed a workers' compensation decision that awarded him certain benefits, determined his industrial disability, and declined to assess a penalty against the employer. He contends 1) he is entitled to more healing period benefits, 2) the evidence supports a "significantly higher" industrial disability, and 3) a penalty should have been assessed. The employer, Heinz U.S.A, and its insurer, Liberty Mutual Insurance Company (collectively "defendants"), contend substantial evidence supports the agency's decision. We affirm.
I. Background facts and proceedings.
Dino Enriquez was injured on July 17, 1997 when he was helping to clean pipes on the ceiling above the cooking area. He was in a cage, which was picked up by a forklift and raised to the ceiling work area. Near the end of the shift he was asked to hang up plastic to catch residue falling from the ceiling. The cage caught as it was being lowered and fell off the forklift. Enriquez fell about ten feet, landing on his elbows, back, and shoulders.
He was seen by the company doctor, Dr. Catalona, but returned to light duty work the next shift. Enriquez returned to Dr. Catalona on July 22. The doctor ordered a bone scan. The scan revealed soft tissue injury to both shoulders. Enriquez was then referred to another company doctor, Dr. Miller, who recommended physical therapy and prescription medications for the pain. Initial complaints were bilateral elbow pain, abrasions and left shoulder pain. Dr. Miller indicated Enriquez complained of pain in the elbows, scapula, and mid-thoracic spine. In September Enriquez was diagnosed with ulnar nerve irritation and cubital tunnel bilaterally, contusion of the olecranon bursa with minimal thickening bilaterally, and ongoing complaints of left shoulder and upper back pain with no physical findings noted. In October Dr. Miller noted cervical, shoulder, and bilateral elbow and arm pain and tenderness. Dr. Miller was unable to find objective physical findings to localize the symptoms to a specific area. He arranged for appellant to be evaluated at the University of Iowa in November of 1997.
Enriquez came under the care of several physicians at the University of Iowa, but Dr. Tearse became his primary treating physician. During various examinations doctors noted Enriquez reported pain in the elbows and left shoulder. Enriquez was referred to the shoulder clinic and was diagnosed with strain and sprain of the trapezius muscle. It was recommended he undergo physical therapy with ultrasound and phonophoresis and other modalities needed to treat the trapezius muscle. He was also instructed in stretching and strengthening exercises.
In December of 1997 Dr. Tearse performed surgery on Enriquez's left elbow. The operation consisted of arthroscopy with soft tissue debridement. Six days after the surgery, the company doctor, Dr. Miller, apparently unaware of the surgery, reported to the defendants that based on his October evaluation, Enriquez "should be able to return to regular work without restrictions." During the next four months, Enriquez followed up with Dr. Tearse at the University of Iowa, and progressed well with the left elbow. On February 16, 1998 Dr. Tearse released Enriquez to return to work with a fifty pound weight limitation and an eight-hour workday. Dr. Tearse believed those restrictions would be in effect for four to six weeks. The employer did not accommodate the light duty restrictions because of Dr. Miller's report. Instead, the employer notified Enriquez he was at a "discharge stage" because of twenty-one unexcused absences over two years. Ten days later, the employer terminated Enriquez. He successfully fought the termination and was reinstated in late March.
In April Enriquez saw Dr. Found at the University of Iowa. He assessed mechanical low back pain and recommended Enriquez continue with a physical therapy program. Several days later Enriquez returned to Dr. Tearse, who indicated his repetitive work activities were aggravating his elbow problems. The doctor recommended that Enriquez avoid work which required any repetitive movement of the upper extremity. Enriquez filed an arbitration petition with workers' compensation. The employer admitted the accident was work related, but denied Enriquez's claim he injured his elbows, shoulders, and back or suffered any whole body injury.
In July Enriquez sought treatment from Drs. Gierlus and Kammen. Enriquez was diagnosed with fibromyalgia. Although Dr. Gierlus indicted it was improbable that the initial work injury caused fibromyalgia, he later retracted that and indicated there was a causal connection. Dr. Kammen diagnosed chronic pain syndrome "arising from his soft tissue injury one year ago." She recommended restrictions of forty-hour weeks, not to exceed eight hours per day. The employer refused accommodation. On October 12 Dr. Kammen reported to the workers' compensation insurer that Enriquez was totally disabled if the employer could not accommodate his restrictions. The employer discharged Enriquez the next day for absenteeism.
Following a hearing in March of 2000, the deputy concluded Enriquez had not proved any of his absences were causally connected to the accident except the time recovering from surgery. He awarded healing period benefits from the date of the surgery in December 1997 to Enriquez's release to return to work in February 1998. The deputy concluded Enriquez suffered an impairment to the body as a whole and, after an analysis of functional impairment and industrial disability, determined he sustained a ten percent loss of earning capacity. The deputy found all the medical expenses were related to the initial injury and ordered the defendants to pay all outstanding medical expenses. After noting Enriquez had credibility problems and that his claim of industrial disability was fairly debatable, the deputy declined to award penalty benefits. Enriquez appealed and the employer cross-appealed. Enriquez sought an increase in healing period benefits, an increase in industrial disability from ten percent to forty or fifty percent, and penalty benefits. The agency summarily affirmed the deputy's decision. Enriquez sought judicial review.
The district court found, in part:
There was no dispute a fall had occurred at work and some amount of injury sustained. Respondents argue there is no preponderance of evidence to support [Enriquez's] complaint of shoulder and low back pain and fibromyalgia. [Enriquez] contends he has sustained permanent injury to the body as a whole. Respondents contend the medical records reach conflicting conclusions on the numerous medical problems claimed by [Enriquez].
After discussing the agency's consideration of the medical records, the court concluded substantial evidence supported the agency's award of a ten percent industrial disability and its limitation of healing period benefits. The court also agreed with the agency's determination Enriquez's claim was fairly debatable and concluded substantial evidence supported the agency's decision not to assess penalty benefits against the employer. Enriquez appeals.
II. Issues.
On appeal Enriquez claims 1) he is entitled to additional weeks of healing period benefits, 2) his industrial disability is higher than the ten percent award, and 3) a penalty should have been assessed for the employer's "wrongful delay in paying healing period benefits and its failure to pay permanent impairment benefits." The defendants respond that substantial evidence supports all the agency's decisions.
III. Scope of review.
On appeal from judicial review of agency proceedings under Iowa Code chapter 17A (1997), our review is limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review functions. Area Educ. Agency 7 v. Bauch, 646 N.W.2d 398, 400 (Iowa 2002). The district court, as well as this court, is bound to the agency's findings of fact if they are supported by substantial evidence. IBP, Inc. v. Iowa Employment Appeal Bd., 604 N.W.2d 307, 311 (Iowa 1999). Evidence is substantial if a reasonable person would find it adequate to reach the same conclusion. Id. The district court acts "in an appellate capacity to correct errors of law on the part of the agency. In our review of such action by the district court, we apply the standards of section 17A.19 to the agency action to determine whether our conclusions are the same as those of the district court." TLC Home Health Care, L.L.C. v. Iowa Dep't of Human Servs, 638 N.W.2d 708, 710-11 (Iowa 2002). The agency, not the court, makes any credibility determinations. See Dunlavey v. Economy Fire Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995). Because our review is not de novo, we do "not reassess the weight to be accorded various items of evidence. Weight of evidence remains within the agency's exclusive domain." Titan Tire Corp. v. Employment Appeal Bd., 641 N.W.2d 752, 755 (Iowa 2002) (quoting Burns v. Bd. of Nursing, 495 N.W.2d 698, 699 (Iowa 1993)). "We apply agency findings broadly and liberally to uphold, rather than to defeat, an agency's decision." Organic Techs. Corp. v. State ex rel. Iowa Dep't of Natural Res., 609 N.W.2d 809, 815 (Iowa 2000).
IV. Discussion
A. Healing period benefits. Enriquez contends he is entitled to additional healing period benefits for days he missed work for medical reasons related to his July 1997 injury. The agency awarded benefits for the time he spent recuperating from elbow surgery, but disallowed benefits for other dates claimed in August and September 1998. The records for the dates claimed reveal examination and/or treatment of back pain from fibromyalgia. There is conflicting evidence in the record concerning the relationship, if any, between the fibromyalgia and the work accident. The agency, as fact finder weighing the evidence, is free to accept or reject testimony in whole or in part. See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 631 (Iowa 2000) (citing Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998)). We conclude substantial evidence supports the agency determination of healing period benefits. Accordingly, we affirm the district court on this issue.
Claimant also seeks healing period benefits for days after his termination by the employer. He argues the agency's rule, "termination for misconduct supercedes any obligation . . . to provide further light duty work" is not based on statutory or common law. Himes v. MSP Resources, Inc., Nos. 1055996 and 1055997 (Industrial Commissioner April 10, 1996). This argument was not addressed by the agency or the district court. It is not preserved for our review. See Iowa R.App.P. 6.14(1)(f); Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (noting "issues must be presented to and passed upon by the district court" to preserve them for appellate review).
B. Penalty benefits. Claimant contends the agency erred in not awarding him penalty benefits under Iowa Code section 86.13 for the defendants' failure to pay healing period benefits and failure to pay permanent impairment benefits until a week before the agency hearing. Section 86.13 (1997) provides, in pertinent part:
If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied.Id. A reasonable cause or excuse exists if the delay was necessary for the insurer to investigate the claim or if the employer had a reasonable basis to contest the claim. Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996). "A reasonable basis exists for denying insurance benefits if the claim is `fairly debatable' as to either matters of fact or law." Dolan v. Aid Ins. Co., 431 N.W.2d 790, 794 (Iowa 1988).
The agency determined, "no penalty benefits will be awarded as any entitlement to industrial disability benefits was clearly debatable." In affirming the agency, the district court stated, "In this case, the Court agrees with the Commissioner that Petitioner's claim to any industrial disability benefits was clearly debatable and not suited for penalty benefits." From our review of the record, we reach the same conclusion as the district court as to industrial disability benefits.
Enriquez also argues penalty benefits should have been awarded for late payment or nonpayment of undisputed healing period benefits and permanent impairment benefits. Although the agency did not rule on this specific claim, it was raised before the district court in Enriquez's trial brief. The district court did not rule on this aspect of the claim. Our review of the record does not reveal it was raised and decided in any post trial motion. Consequently, it has not been preserved for our review on appeal and we do not address it. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002); see Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995) (noting that when a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal).
C. Industrial disability rating. Enriquez claims his industrial disability rating should be in the forty to fifty percent range. The agency determined his industrial disability to be ten percent. Enriquez claims the agency did not consider the entire record, overlooking the opinions of three doctors who assigned whole body permanency ratings. The district court disagreed with the claim, finding, "the decision considered the medical evidence in detail. . . . There is no requirement that the agency must cite to every medical opinion in the decision."
From our review of the record before us, we reach the same conclusion as the district court. The agency clearly considered the medical evidence, although it did not refer to every doctor's opinion in its ruling. Although the evidence might support a higher functional impairment rating, functional impairment is only one factor to consider in determining industrial disability. Al-Gharib, 604 N.W.2d at 635. The agency determines the weight to give to the factors. Id. In determining the industrial disability rating, the agency also considered Enriquez's credibility problems. Weighing the evidence and assessing credibility both are reserved to the agency, not the reviewing courts. See Titan Tire Corp., 641 N.W.2d at 755; Dunlavey, 526 N.W.2d at 853. We, like the district court, conclude substantial evidence supports the agency's determination of Enriquez's industrial disability rating.
V. Conclusion
Having considered the issues properly preserved for our review, we reach the same conclusions as the district court. Healing period benefits properly were awarded for the period of recuperation following surgery, but not for additional claimed periods for treatment of conditions not proven to be causally related to the work injury. The industrial disability claim was fairly debatable, so no award of penalty benefits was appropriate. The agency's determination of the amount of industrial disability is supported by substantial evidence. Accordingly, we affirm the decision of the district court.