Opinion
No. 3-615 / 02-1523
Filed September 24, 2003
Appeal from the Iowa District Court forWoodbury County, Duane E. Hoffmeyer, Judge.
Employer appeals the workers' compensation commissioner's finding of permanent total disability. AFFIRMED.
Michael Mock of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellant.
Paul Deck of Deck Deck, L.L.P., Sioux City, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Swift Contractors, Inc. appeals the district court ruling affirming the deputy workers' compensation commissioner's award of permanent total disability benefits to employee Keith Andersen. We affirm.
Background Facts. Keith Andersen began working as a carpenter and laborer at Swift Contractors, Inc. (Swift) in 1997. On October 5, 1998, Andersen fell off a scaffold and landed on the wooden handle of a scraper tool which penetrated his jeans and entered his rectum. Later that day, Dr. Michael Wolpert performed surgery on Andersen, conducting a proctosigmoidoscopic examination and an exploratory lap with diverting loop colostomy. Andersen was discharged from the hospital on October 12 but was readmitted on October 15 due to abdominal pain caused by an intestinal obstruction. Anderson was again discharged on October 19 but went to the emergency room on October 21 and 26 complaining of severe abdominal pain. He was readmitted on October 26 and Dr. Wolpert performed an exploratory laparatomy with release of a small bowel obstruction. Dr. Wolpert, finding the colon relatively congested and full of fluid, decided to continue the colostomy bag at that time. Andersen returned on December 14 to have the colostomy removed.
Andersen regularly saw Dr. Wolpert until August 9, 2000, for continued abdominal pain, nausea, and irregular bowel movements and has been prescribed numerous medications including a stool softener and a heartburn reliever. Dr. Wolpert's medical notes also reflect emotional instability due to Andersen's fear of falling or re-injuring himself. In December 1999, Dr. Wolpert released Andersen to return to work without restrictions; however, at the time of hearing, Andersen had not looked for employment outside of Swift and had not worked since the injury. Andersen continued to suffer abdominal pain and discomfort to the date of hearing, May 21, 2001.
The deputy workers' compensation commissioner found that while there was testimony Andersen may be capable of working in some capacity, the injury had diminished his earning capacity substantially to warrant permanent total disability benefits under Iowa Code section 85.34(3) (1997). The chief deputy workers' compensation commissioner summarily affirmed the award of benefits. The district court, adopting the commissioner's findings of fact nearly verbatim, affirmed the award. Swift appeals.
Scope of Review. The Iowa Administrative Procedure Act, Iowa Code section 17A.19(10), governs our review of agency action. Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003). Our review is for the correction of errors at law, not de novo. Id.(citing Locate.Plus.Com, Inc. v. Iowa Dep't of Transp., 650 N.W.2d 609, 612 (Iowa 2002)). We will affirm if we determine the agency action was based on substantial evidence in the record when that record is viewed as a whole. Iowa Code § 17A.19(10)(f) (2001); Dawson v. Iowa Bd. of Med. Exam'rs, 654 N.W.2d 514, 518 (Iowa 2002). Evidence is not insubstantial merely because it would have supported contrary inferences, nor is evidence insubstantial because of the possibility of drawing two inconsistent conclusions from it. Missman v. Iowa Dep't of Transp., 653 N.W.2d 363, 367 (Iowa 2002). On review, the question is not whether the evidence supports a finding different from the commissioner's but whether the evidence supports the findings the commissioner actually made. Id. (citing Reed v. Iowa Dep't of Transp., 478 N.W.2d 844, 846 (Iowa 1991)).
On appeal,Swift contends the commissioner erred in 1) not requiring Andersen to submit evidence of a good faith job search and did not consider Andersen's lack of motivation to return to work, and 2) awarding permanent total disability benefits without substantial evidence to support such award.
Discussion. Citing Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985) and Second Injury Fund v. Nelson, 544 N.W.2d 258 (Iowa 1995), Swift argues Andersen should have been required to demonstrate a reasonable effort to find employment before receiving permanent total disability benefits. The deputy commissioner concluded "there is no reasonable likelihood that [Andersen] can become employed in the competitive employment setting in any well-known branch of the labor market without accommodations and that therefore he is permanently and totally disabled from gainful competitive employment." To support this conclusion the deputy commissioner cited the functional impairment ratings given by Dr. Douglas W. Martin and Dr. D. M. Gammel, and the vocational rehabilitation consultant's report by Sandra Trudeau, stating Andersen's transferable skills do not allow for sedentary or light work, Andersen's lack of education and low IQ, and the physical problems Andersen is likely to endure in the future.
The deputy commissioner essentially found Anderson to be an "odd-lot" employee, that is, one who is incapable of finding work in any established branch of the labor market. Nelson, 544 N.W.2d at 267; Guyton, 373 N.W.2d at 105; Hainey v. Protein Blenders, Inc., 445 N.W.2d 398, 400 (Iowa Ct.App. 1989). "If the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist then the employee falls in the odd-lot category and is totally disabled." Nelson, 544 N.W.2d at 267 (quoting Guyton, 373 N.W.2d at 105). "A person who has no reasonable prospect of steady employment has no material earning capacity." Guyton, 373 N.W.2d at 105.
The odd-lot doctrine triggers a shift in the burden of production. Id. At a hearing to determine loss of earning capacity, the burden is normally on the claimant to demonstrate a reasonable effort to secure employment in his area of residence. Id. (citing Employers Mut. Life Ins. Co. v. Industrial Comm'n, 541 P.2d 580, 582 (Ariz. 1975)). However, if the claimant establishes a prima facie case of total disability by producing substantial evidence that he is not employable in the competitive labor market, then the burden shifts to the employer to produce evidence of suitable employment for the claimant. Id. at 106. If the employer fails to meet this burden and the agency finds claimant falls into the odd-lot category, then claimant is entitled to total disability. Id.
Swift argues that Andersen did not meet his burden of production by demonstrating a reasonable effort to secure employment in the Sioux City area. However, this is not the definitive inquiry. See Nelson, 544 N.W.2d at 267 (citations omitted) (noting a claimant does not absolutely have to prove he looked for work if he introduces "substantial evidence that he has no reasonable prospect of steady employment."). We must determine if Andersen established a prima facie case of total disability by showing that he was not employable, which would then shift the burden to Swift to produce evidence of suitable employment for Andersen. If Andersen did not establish a prima facie showing that he was not employable, he retained the burden to show he made reasonable efforts to find employment.
Andersen testified that on two occasions he sought employment with Swift after the injury: In the summer 1999, Andersen was released to work with a twenty-pound lifting restriction, but was told by Swift he could not come back until he was "one-hundred percent." In December 1999, when Dr. Wolpert released Andersen to return to work without restrictions pending the healing of a hip injury, Swift no longer had any work in the Sioux City area.
Swift argues that Andersen's lack of motivation to find a job should have been considered in determining his industrial disability. However, because we find the burden of production shifted to Swift to establish suitable employment was available, lack of motivation is not a factor in assessing industrial disability. Cf. Hainey v. Protein Blenders, Inc., 445 N.W.2d 398, 400-401 (Iowa Ct.App. 1989) (holding lack of motivation was relevant to industrial disability where claimant failed to establish a prima facie showing for inclusion in the odd-lot category).
At the hearing, evidence was introduced regarding Andersen's health, capabilities, education, and intelligence. Andersen continues to suffer from abdominal pain and irregular bowel movements. The injury also damaged his prostate and has affected Andersen's ability to maintain an erection. In addition to the physical repercussions of the injury, Andersen now fears heights and worries about re-injuring himself. Andersen testified he removed the handles on most of his home tools because he could not look at them without thinking of the accident. Dr. Wolpert noted on several occasions that Andersen feared heights and that maybe he should seek a different type of job. A month and a half prior to the hearing Andersen began seeing a psychiatrist. Andersen was prescribed Remeron to aid with sleep and depression. Dr. Martin, who conducted an independent medical examination, reported that Andersen's lower abdominal pain, ribbon-like stools, and nausea would be lifelong problems. Dr. Martin recommended further balloon dilatations of the colon, evaluation of the prostatic injury, and a urologic evaluation for erectile dysfunction.
Dr. Wolpert released Andersen to return to work without restrictions in December 1999, however, Dr. Wolpert did not assign him an impairment rating as he was not qualified to do so. Andersen sought such a rating from Dr. Martin and Dr. Gammel. Dr. Martin evaluated Andersen on August 23, 2000, and assigned Anderson a thirty-percent of the body as a whole impairment rating but stated that the rating may increase based upon the outcome of a prostate and erectile dysfunction evaluation. As for employment, Dr. Martin reported Andersen would be limited to sedentary or sedentary light work and did not recommend Andersen return to the construction field. Dr. Martin further stated Andersen would be limited to lifting fifteen to twenty pounds. On December 7, 2000, Dr. Gammel evaluated Andersen and assigned him an impairment rating of thirty-four percent of the body as a whole. Dr. Gammel determined that Andersen could not tolerate an eight-hour workday with varying physical positions; instead he recommended Andersen limit employment to four hours a day. Dr. Gammel further limited Andersen's lifting capacity to thirty-five pounds, "occasionally." In preparation for hearing, Andersen was also evaluated by Sandra Trudeau, a vocational rehabilitation consultant. Taking into account Andersen's medical records, school records, employment history, and interviews with Andersen, Trudeau determined that the injury reduced his accessibility to jobs by forty-eight percent. Trudeau anticipated that number to increase if Andersen only worked four hour days.
Dr. Gammel determined Andersen's whole person impairment rating to the colon, rectum, and anus was thirty-percent and his lumbar spine five percent. The combined whole person impairment rating was therefore thirty-four percent.
In determining whether a claimant falls into the odd-lot category, a court may also consider intelligence, education, training, ability to be retrained and age. Nelson, 544 N.W.2d at 268 (citing Guyton, 373 N.W.2d at 105). According to Trudeau's report, Andersen dropped out of high school in 1979, during his junior year, with a grade point average of 1.667 and an IQ of 80-86. Andersen received his GED in 1981 and has had no further formal education. Andersen's employment history consists of manual labor occupations that were medium to very heavy work, skilled and unskilled. The only training Andersen received was on-the-job-training. At the time of the injury Andersen was thirty-seven. Trudeau did not indicate in her report whether Andersen had the ability to be retrained.
The record reveals the evidence in this case is controverted. All three doctors reported Andersen could work but with varying restrictions, and a vocational rehabilitation consultant reported fifty-two percent of the job market accessible to Anderson, less if he only worked four hour days. On the other hand, Andersen is uneducated with a low intelligence testing, has worked only in manual labor positions, continues to suffer pain and discomfort, is seeing a psychiatrist for depression, and will likely continue to suffer and need treatment for a variety of colon and prostate-related problems in the future. When bodily impairment, the worker's age, intelligence, education, qualifications, and experience preclude the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total industrial disability. Guyton, 373 N.W.2d at 103 (citing McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980)). After a review of the record as a whole, we find there is sufficient evidence to establish a prima facie case that Anderson was not employable after the injury, and Swift failed in its burden to produce evidence of suitable employment, thereby entitling Andersen to permanent total disability benefits.
While the evidence is not overwhelming that Andersen is totally disabled, that is not our standard ofreview. Swift overlooks that even if the record could support a different conclusion, given the limited nature of judicial review we must affirm if it is supported by substantial evidence. Iowa Code § 17A.19(10)(f) (2001); Missman, 653 N.W.2d at 366 (citing Reed, 478 N.W.2d at 846). Evidence is substantial if a reasonable person would consider it sufficient to support the agency's conclusions. Iowa Code § 17A.19(10)(f)(1) (2001). After a review of the record as a whole, including the evaluations of Dr. Martin, Dr. Gammel, and Trudeau in conjunction with the functional impairment, work experience, and limited education of Andersen, a reasonable person could find that Andersen is permanently and totally disabled. Like the district court, we find substantial evidence in the record to support the commissioner's findings and affirm.