Opinion
No. 5-403 / 04-1834
Filed August 17, 2005
Appeal from the Iowa District Court for Clay County, Nancy L. Whittenburg, Judge.
Spencer Truck Line, Inc. and Great West Casualty appeal the decision of the district court affirming the Iowa Workers' Compensation Commissioner's ruling in favor of Mark Krukow. AFFIRMED.
Joseph Barron and Stephen Spencer of Peddicord, Wharton, Spencer Hook, L.L.P., Des Moines, for appellant.
James Benz of Benz Law Office, Spirit Lake, and Michael Bovee of Montgomery, Barry Bovee, Spencer, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
Spencer Truck Line, Inc. and its insurance carrier Great West Casualty (collectively referred to as Spencer) appeal the decision of the district court affirming the decision of the Workers' Compensation Commissioner (agency). The agency's final decision awarded Mark Krukow healing period benefits, permanent partial disability benefits, and medical costs arising from an injury he sustained while in Spencer's employ. On appeal, Spencer argues the agency erred in finding: 1) Krukow's anxiety symptoms are causally related to the injury; 2) Krukow proved he had an industrial disability; and 3) that Krukow proved he was entitled to additional healing period benefits. Because substantial evidence supports the agency's decision, we affirm.
I. Background Facts and Proceedings
Mark Krukow worked full-time for Spencer as a truck driver, primarily hauling cattle. On February 17, 1999, Krukow was injured when a steer he was loading kicked a gate, propelling the gate towards Krukow's head. As a result, Krukow sustained a laceration approximately ten centimeters in length near his hairline. Krukow was taken to the emergency room, his cut was treated by Dr. John E. Hilsabeck, and he was released. Following his return home, Krukow experienced pain and discomfort stemming from the severe swelling around his eyes which culminated in Krukow being unable to open his eyes for a couple of days. Krukow remained off work from February 17 until February 22.
In early March Krukow saw Dr. Hilsabeck because he was experiencing daily headaches and was concerned about a perceived change in his affect. Specifically, Krukow felt he was always "wound up" as if he had extra adrenaline and that he was easily agitated and angered, running contrary to his nature prior to his injury. These problems persisted and in January of 2000 Krukow was referred to a neurologist, Dr. Jerome W. Freeman.
Dr. Freeman's medical notes reveal that Krukow complained to him of daily headaches, short term memory loss, confusion, and mood swings which were sometimes violent. He further noted that Krukow's wife felt that his personality had changed significantly since the injury. Dr. Freeman's ultimate assessment states, "I suspect that he sustained a cerebral concussion. His headaches, memory loss, irritability, and decreased memory are all consistent with that diagnosis. . . . I do think some pharmacologic treatment may be warranted in him."
Dr. Freeman also noted Krukow's need for further evaluation. In February of 2000, he referred Krukow to Dr. William P. Ferguson for a neuropsychological assessment. Dr. Ferguson indicated that Krukow was suffering from post-concussion syndrome and recommended he be placed on the anti-depressant Zoloft. Krukow again saw Dr. Ferguson in September of 2000 for a follow-up evaluation, after which Dr. Ferguson noted:
[Krukow] has not done well since I last saw him. He appears increasingly frustrated and discouraged with himself and others, and more and more depressed. I think psychiatric evaluation is warranted.
Krukow was then referred to Dr. James Flevares, a psychiatrist. Dr. Flevares's notes from Krukow's first visit in October of 2000 indicate that Krukow had experienced increasing problems with anxiety and anger since his February 1999 work accident with the most significant problems being anxiety related. Dr. Flevares ultimately diagnosed Krukow with an organic anxiety disorder.
In January of 2001 Krukow filed a petition with the Iowa Industrial Commissioner alleging a permanent injury resulting from his 1999 injury. Following a hearing in November 2002, a deputy workers' compensation commissioner found Krukow had a ten percent industrial disability and that this condition was causally related to his 1999 injury. The deputy commissioner awarded Krukow healing period benefits, permanent partial disability benefits, and medical expenses. Spencer filed a notice of appeal. In January of 2004 the Worker's Compensation Commissioner affirmed the decision. Spencer petitioned for judicial review and in October the district court issued a ruling affirming the agency's decision in its entirety. Spencer appeals.
II. Scope and Standard of Review
Iowa Code chapter 17A governs judicial review of agency decisions. See Iowa Code § 86.26 (2003). In exercising its judicial review power, the district court acts in an appellate capacity. Mycogen Seeds v. Sands, 686 N.W.2d 457, 463 (Iowa 2004). In reviewing the district court's decision, we apply the standards of chapter 17A to determine whether our conclusions are the same as those of the district court. Id. If they are the same, we affirm; otherwise we reverse. Id.
Spencer's arguments on appeal concern whether there was substantial evidence to support the agency's decision. Chapter 17A provides in relevant part:
The court may affirm the agency action or remand to the agency for further proceedings. The court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
. . . .
f. based on a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole. For purposes of this paragraph, the following terms have the following meanings:
(1) " Substantial Evidence" means the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.
Iowa Code § 17A.19(10)(f)(1). Factual findings regarding the award of benefits are within the agency's discretion. Mycogen Seeds, 686 N.W.2d at 464-65. Therefore, we are bound by the agency's factual findings if they are supported by substantial evidence. Id. In reviewing these findings of fact, "the question is not whether the evidence might support a different finding, but whether it supports the findings actually made." St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 649 (Iowa 2000).
III. Issues
A. Causation
We first address Spencer's contention that Krukow's ongoing symptoms of panic attacks are not causally related to his 1999 injury. "Whether an injury has a direct causal connection with the employment or arose independently thereof is ordinarily established by expert testimony." Gray, 604 N.W.2d at 652. After Dr. Flevares examined Krukow on October 11, 2000, he noted that Krukow "did have two episodes of panic when he was processing his father's estate." Krukow's father died suddenly in 1997 of a ruptured aneurysm, and Krukow was on the scene as a first responder, in a failed attempt to revive him. Although Dr. Flevares noted this history, he concluded Krukow's cognitive changes were associated with the head injury rather than with the earlier death of his father. In the "diagnostic impression" section of his October 11, 2000, notes, Dr. Flevares wrote:
I pointed out to Mr. Krukow that it appears that he has cognitive changes following his closed head injury. In the past this would have been called an organic anxiety disorder. He has had a vast increase in his level of arousal. He describes multiple anxiety symptoms including increased PTSD [Posttraumatic Stress Disorder] symptoms, a prolonged panic attack, as well as social phobia and increased irritability.
When Krukow saw Dr. Flevares again in January of 2001, Dr. Flevares noted Krukow did have an organic anxiety disorder and that "his history is consistent with a sudden onset of an anxiety disorder following a concussion." Dr. Flevares also indicated in his medical notes from January that Krukow did not suffer from the symptoms of this disorder until after his February 1999 head injury. Krukow's other treating physicians also suggest in their medical notes that the symptoms of Krukow's anxiety disorder stem from the concussion he sustained in February of 1999. Moreover, in a letter written November 18, 2002, to Krukow's attorney, Dr. Flevares specified that Krukow's anxiety disorder "is casually related to a concussion." Dr. Flevares further concluded in this letter that "if [Krukow] had not suffered this closed head injury, I do not believe he would be suffering from an anxiety disorder at the present time."
The agency relied on this medical evidence to conclude Krukow's anxiety and stress disorder is causally related to his work injury. In doing so the agency rejected the testimony of Dr. Dennert who, from a single examination of Krukow in May 2002, made a contrary diagnosis of "depression not otherwise specified." Dr. Dennert concluded,
Without demonstrable brain damage, either through anatomical damage or cognitive dysfunction, there is no credible causal link between the reported changes in Mr. Krukow's behavior and the blow to his head. It is my medical opinion that his reported symptoms are unlikely to be related to his accident.
While there is a disagreement among the experts, we will not take issue with the agency's choosing to discount Dr. Dennert's opinion and placing more weight on other expert medical evidence in the record. See Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998) ("The commissioner, as the fact finder, determines the weight to be given to any expert testimony."). Consequently, we conclude the agency's determination regarding causation is supported by substantial evidence.
B. Industrial Disability Finding and Award of Permanent Partial Disability Benefits.
A permanent partial disability with an unscheduled loss is compensated by determining the employee's industrial disability. Gray, 604 N.W.2d at 653 (Iowa 2000). Industrial disability measures an injured worker's lost earning capacity. Id. Several factors are considered in determining an employee's degree of industrial disability including: the employee's functional impairment, age, education, work experience, qualifications, ability to engage in similar employment, and adaptability to retraining. Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998). "The focus is not solely on what the worker can or cannot do; industrial disability rests on the ability of the worker to be gainfully employed." Myer v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999).
Spencer asserts that the agency's finding of a ten percent industrial disability and its corresponding award of permanent partial disability benefits is not supported by substantial evidence. In fact, it claims there is no evidence in the record supporting the industrial disability finding. Spencer argues that the disability finding in this case ignores these critical facts: 1) Krukow never received a permanent impairment rating from any doctor; 2) there is no objective evidence of a brain injury, deficiencies in memory or cognitive functions; 3) Krukow has no work restrictions; and 4) Krukow continues to be employed as a trucker, earning more money now than he did while working for Spencer.
With regard to whether Krukow suffers from an industrial disability, the Deputy Workers' Compensation Commissioner stated, "There is no evidence that the claimant is in any way restricted in his working as a result of the injury. There is no evidence of loss of actual earnings." However, the Deputy Commissioner then qualified this statement by further finding that,
The claimant is required to take medication for the indefinite future and such medication must be closely monitored so that it does not interfere with his ability to drive. The claimant has experienced a significant personality change, which seems to be under sufficient control for him to perform work for his current employer. As an over-the-road driver he may be required to drive in highly concentrated traffic areas which logically may cause him more stress thus aggravating his condition. (Emphasis added).
Moreover, the deputy's findings were then further modified by the following findings of the Workers' Compensation Commissioner in the final agency decision:
In this case the claimant testified credibly that he limits the locales in which he drives in order to avoid the types of circumstances that might produce a panic attack or the other mental and emotional difficulties the propensity to which relates back to his work injury. It is fortuitous that claimant's current employer accommodates these limitations. It does not follow that such accommodation is widely available in the trucking industry. A small award for permanent partial disability is indicated.
Spencer asserts this finding is not supported by substantial evidence because Krukow does not have an impairment rating, work restrictions, or a physical brain injury. The gist of Spencer's proposition, as advanced at oral argument, is that the Commissioner cannot simply accept assertions of limited earning capacity made only by the claimant, without having an expert impose an impairment rating, work restrictions, or produce other "competent evidence." It is true that generally, in workers' compensation cases whether an injury has a direct causal connection with the employment is essentially within the domain of expert testimony. Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 421 (Iowa 1994). However, lay testimony can buttress the medical testimony and be relevant and material in determining the extent of an employee's injuries and may be considered in determining an employee's disability impairment. Id.
In this case expert testimony did support the agency's finding that Krukow's anxiety disorder was caused by his employment. Yet no expert directly opined that this anxiety disorder created an industrial disability nor did any medical professional impose any restrictions on Krukow's employment. However, Krukow testified that just one week after returning to work for Spencer following his injury he was assigned the task of delivering a load to Dallas, Texas and that he "drove right through Dallas and was on [his] way to Waco, Texas . . . which is 80 miles away, before [he] even realized it." In addition, Krukow testified that he can no longer remember his trailer number without writing it down, and that the change in his affect has caused him to be confrontational with other truckers. Krukow also testified, and his doctors noted, that he had a large anxiety attack while on the road in Montana which prevented him from driving for eighteen to twenty hours. Furthermore, Dr. Flevares opined that Krukow's anxiety disorder "will require ongoing treatment with antidepressants as well as anti-anxiety agents." The record further indicates that Krukow's medication must be monitored in order to ensure it does not interfere with his ability to drive. As Krukow testified, when he drives in congested areas he is forced to take larger doses of his anti-anxiety medication, which causes him to become drowsy so that he must stop his truck and rest. Krukow also testified that he is entirely unable to drive in some particularly high areas of congestions such as New York City and California and that his current employer limits the geographic areas in which he drives in order to avoid anxiety attacks.
This evidence is sufficient to allow a reasonable, neutral, and detached fact-finder to conclude Krukow's anxiety disorder directly affects his employability. More specifically, this evidence supports the conclusion that Krukow's anxiety disorder negatively affects his ability to compete in the job market. See Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 617 (Iowa 1995) ("the commissioner was correct in viewing loss of earning capacity in terms of the injured worker's present ability to earn in the competitive job market. . . ."). This is true even though Krukow has maintained employment as a truck driver earning more than he did at Spencer. Krukow testified that his current employer accommodates his inability to drive in high stress environments by not requiring he drive in these areas. Spencer does not dispute this assertion. This accommodation will not necessarily transfer to the competitive labor market as a whole. See Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 157 (Iowa 1996); cf. Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 831 (Iowa 1992) (stating a showing of actual reduction in the employee's earning is not always necessary to demonstrate a reduction in earning capacity). Consequently, we conclude substantial evidence supports the agency's finding of a ten percent industrial disability and its corresponding award of permanent partial disability benefits.
B. Healing Period Benefits
From October 11 to October 26 of 2000, Krukow was taken off work by Dr. Flevares for adjustment of his medication following a severe panic attack. The agency awarded Krukow healing period benefits for this period of time. "Healing period compensation is a description given to temporary workers' compensation weekly benefits that precede an allowance of permanent partial disability benefits." See Pitzer v. Rowley Interstate, 507 N.W.2d 389, 391 n. 1 (Iowa 1993) (citation omitted). Spencer argues substantial evidence does not support the agency's finding that Krukow's inability to work during this period was caused by his work injury.
Specifically, Spencer asserts that the event precipitating the anxiety attack that resulted in an adjustment in Krukow's medication was his witnessing a severe vehicle accident as well as having a vivid nightmare involving Krukow's recently deceased father. The agency addressed this argument by noting,
Regardless of the content of claimant's dreams or the context in which he now experiences panic attacks, the propensity to have these attacks directly relates to the February 17, 1999 work injury as do his other personality and behavioral changes.
In his medical notes from October of 2000 Dr. Flevares wrote,
After [Krukow] had been [struck] in the head, he had an increase in episodes of panic as well as PTSD [posttraumatic stress disorder]. The patient described remote episodes of anxiety when he had been handling his father's estate. He also had intrusive memories of his father's death. . . . These had not been severe. They had subsequently gotten significantly worse after being [struck] in the head.
Dr. Flevares then wrote on a prescription pad, Krukow, "will require 10-14 days off from work for medication adjustment and treatment" We have already determined substantial evidence supports the agency's finding the panic attacks are causally related to his work injury. Substantial evidence likewise supports the agency's award of healing period benefits for the time Krukow spent away from work in October of 2000 so that his body could adjust to the new medication.
The decision of the district court, affirming the agency final decision, is therefore affirmed.