Opinion
No. 3-539 / 02-1864
Filed November 17, 2003
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Michael Thompson appeals from a ruling on judicial review affirming the agency decision which denied his claim for workers' compensation benefits. REVERSED AND REMANDED.
Mark T. Hedberg of Hedberg, Owens, Hedberg Spaulding, P.C., Des Moines, for appellant.
David Jenkins of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Monies, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Michael Thompson appeals from a ruling on judicial review affirming the agency decision which denied him workers' compensation benefits. Because we conclude the chief deputy workers' compensation commissioner committed an error of law concerning the cumulative injury rule, we reverse and remand.
Background Facts and Proceedings.
This case has a lengthy history which has been documented in detail in various agency, district court and Iowa Court of Appeals rulings. Because these rulings have extensively laid out the procedural background and facts of this case, we do not fully restate them here. However, we do note certain relevant portions of the facts and earlier proceedings.
Thompson is a journeyman electrician who has been employed by various contractors, including Brown Brothers, Inc., based on referrals made by a union. He was last employed by Brown Brothers from May 15, 1995, to July 8, 1995. Thompson submitted a report of injury to Brown Brothers on August 1, 1995, in which he claimed he suffered a shoulder injury on May 31, 1995, as the result of work-related exertions. Thompson underwent surgery on August 8, 1995, to repair a torn rotator cuff in his left shoulder. These proceedings commenced with Thompson's arbitration petition filed July 15, 1996, in which he alleged a left shoulder injury caused by repetitive trauma and an injury date of July 8, 1995. An arbitration decision filed March 4, 1998 held that the employer owed no compensation because Thompson's last employment with Brown Brothers "did not significantly increase or aggravate the injury." Thompson sought intra-agency review.
In an April 30, 1999 Appeal Decision, workers' compensation commissioner Iris Post reversed the deputy's decision and found Thompson had "carried his burden of proof to show that his current shoulder condition is caused by his work activity." The Commissioner further made the following findings and conclusions:
The fact that the rotator cuff tear may have begun prior to working for this employer is not determinative. Nor is the fact that claimant began seeking medical attention for his shoulder prior to working for this employer. Claimant's injury is not caused by a single traumatic event occurring prior to his employment with this employer. Rather, the medical evidence generally indicates that claimant's shoulder condition is caused by his work activity over several years. It was work for this employer that constituted claimant's "last injurious exposure" prior to the surgery of August 8, 1995. Claimant's treatment prior to the surgery, and prior to working for this employer, consisted of injections and conservative treatment only. While working for this employer, claimant's symptoms increased and he had to undergo surgery.
Although the jet ski accident was the incident that actually took claimant off work for defendant employer, it was work with this employer that caused an increase in claimant's symptoms immediately before the surgery on August 8, 1995. It is therefore held that claimant's cumulative injury manifested itself on July 8, 1995, and that the injury arose out of and was in the course of claimant's employment. It is also held that claimant's current shoulder condition is causally related to his work injury of July 8, 1995.
(Emphasis added). On judicial review, the district court affirmed, focusing primarily on the fact his work at Brown Brothers constituted Thompson's last injurious exposure.
Brown Brothers subsequently appealed to this court. In Brown Bros., Inc., v. Thompson, No. 00-498 (Iowa Ct.App. April 27, 2001), we remanded to the workers' compensation commissioner after determining the commissioner had improperly applied the "last injurious exposure rule" to a cumulative injury case. Because a panel of this court was unable to discern whether the commissioner determined Thompson sustained his burden based on finding a causal connection between Thompson's injury and his work at Brown Brothers or simply because Brown Brothers was Thompson's last place of employment, we remanded to the commissioner for a redetermination of Brown Brothers' liability "under controlling legal principles."
Upon remand, the chief deputy workers' compensation commissioner found Thompson's rotator cuff tear occurred sometime before Thompson's May 15, 1995 re-employment with Brown Brothers and therefore concluded Thompson "has failed to prove . . . that there is a causal connection between his employment with defendant employer as alleged. . . ." On judicial review, the district court affirmed, concluding substantial evidence supported the agency's determination Thompson's injury did not arise out of his employment with Brown Brothers from May 15, 1995, through July 8, 1995. Thompson appeals.
Standard of Review.
Our review of a workers' compensation commissioner's decision is on error, not de novo. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995). We, like the district court, are bound by factual findings made by the commissioner so long as those findings enjoy substantial support in the record made before the agency. Id. The commissioner's interpretation of the workers' compensation statutes is entitled to deference, but the final interpretation of law rests with the court. Teel v. McCord, 394 N.W.2d 405, 407 (Iowa 1986).
We will uphold the agency's action against a claim it is unsupported by substantial evidence in the record made before the agency when the record is viewed as a whole, if a reasonable person could accept the evidence as adequate to reach the findings made by the agency. Pointer v. Iowa Dep't of Transp., 546 N.W.2d 623, 625 (Iowa 1996). Evidence is not insubstantial merely because it would have supported contrary inferences. City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 536 (Iowa 1996). Nor is evidence insubstantial because of the possibility of drawing two inconsistent conclusions from it. Id. The ultimate question is not whether the evidence supports a different finding but whether the evidence supports the findings actually made. Id. Therefore, if the agency's findings of fact are supported by substantial evidence, those findings are binding on us. Id.
Discussion.
A claimant seeking workers' compensation benefits has the burden of proving by a preponderance of the evidence that the disability on which he or she bases a claim arose out of and in the course of the claimant's employment. St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 652 (Iowa 2000). The question of causal connection is essentially within the domain of expert testimony. Dunlavey v. Economy Fire Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995). The commissioner is free to accept or reject, in whole or in part, expert testimony even if uncontroverted. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
This is a repetitive, or cumulative, trauma case. See McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985) (recognizing cumulative injury as a viable theory of recovery under the workers' compensation code).
In McKeever our supreme court determined that when a disability develops over a period of time, the compensable injury is held to occur when the employee, "because of pain or physical inability," can no longer work. Id. In fixing a date of occurrence of the cumulative injury, the commissioner is "entitled to consider a multitude of factors such as absence from work because of inability to perform, the point at which medical care is received, or others, none of which is necessarily dispositive." Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992). The date when an employee realizes his injury will have an impact on employment has also been considered relevant to the identification of the date of injury. See Venenga v. John Deere Component Works, 498 N.W.2d 422, 425 (Iowa Ct.App. 1993).
As noted, our previous remand was for a "redetermination" of Brown Brothers' liability, and in particular a redetermination of whether there was a causal connection between Thompson's injury and his work for Brown Brothers. On remand, the agency concluded Thompson "failed to prove . . . there is a causal connection between his employment with" Brown Brothers. This finding, of course, was made despite the commissioner's previous determination Thompson had "carried his burden of proof to show that his current shoulder condition is caused by his work activity." In analyzing Thompson's cumulative injury claim, the chief deputy's Remand Decision focused upon the date on which Thompson's rotator cuff tore. Specifically, he parsed the medical testimony to determine the actual date the tear most likely occurred and concluded it must have occurred prior to Thompson's May 15, 1995 return to employment with Brown Brothers. Having concluded the tear occurred before May 15 1995, the agency concluded Thompson had failed to carry his burden of establishing a causal connection between his employment with Brown Brothers and the alleged disability.
We conclude the agency's focus on the date when the rotator cuff tear occurred evidenced a misapprehension of the nature of a cumulative injury, and resulted in an error of law. A cumulative injury is an injury which by its nature occurs over some extended period of time rather than as a result of a single traumatic event. See McKeever, 379 N.W.2d at 374. Under the cumulative injury rule, the "date of injury" in a case alleging a rotator cuff injury is not, as the agency presumed, confined to the date when a tear first appears.
Dr. Neff, Thompson's treating physician, testified the tear had gradually developed over a period of time "much longer" than a six to seven week period. He further noted "many times a rotator cuff literally wears through over time [and] . . . [i]t's a gradual failure of a tendon, a rubbing-through kind of like the kid's jeans do at the knee." Likewise, Dr. Bashara described a rotator cuff tear as a "repetitive or cumulative event as opposed to a one-time traumatic event, which means that it happened over a period of time rather than from one single event." In further explaining the process, Dr. Bashara noted
[W]hat happens is that the rotator cuff . . . over a period of time, becomes frayed and thin. And as that process continues, it eventually can rupture or completely tear in two. It's a very common condition. As far as time that it takes to do that, I'd say that's almost an individual thing. It usually takes at least weeks, sometimes months and sometimes years. It depends on every individual and the type of activity they're doing. So, you can't generalize about how long it would take to occur.
Moreover, the uncontroverted expert testimony in this case would support a fact finding that Thompson's injury was not complete when a tear first appeared. Dr. Bashara explained that the injury was of a progressive nature even after the tear began and that "had surgery not been done, a year later it would have been a worse tear. You see, it's something that develops over time." There is evidence in the record which would support a fact finding (1) that Thompson continued his typical work activities for Brown Brothers between May 15 and July 8 of 1995; and (2) that Thompson's work activities during that period for Brown Brothers caused an increase in his shoulder symptoms and were a substantial factor in the causation of his shoulder disability.
Although a reasonable fact-finder could find, as the agency did in this case, that Thompson's rotator cuff tore perhaps as early as 1993, well before he returned to Brown Brothers' employment on May 15, 1995, this finding is not dispositive on the causation issue in this cumulative injury case. The question the agency should have addressed on remand is whether Thompson's repeated use of the shoulder in the course of his employment with Brown Brothers between May 15 and July 8, 1995 — even if such work activity occurred after the tear first appeared — was a substantial factor in causing the shoulder condition treated in the August 1995 surgery and Thompson's related disability. The agency thus committed an error of law in this cumulative injury case by (1) viewing the date when Thompson's rotator cuff tear occurred as the dispositive fact on the causation question, and (2) failing to consider whether Thompson's work for Brown Brothers during his last term of employment from May 15 to July 8, 1995 was a substantial factor in causing the shoulder disability diagnosed in this case.
We note that the Commissioner's appeal decision of April 30, 1999 expressly found (1) "it was work with this employer that caused an increase in claimant's symptoms immediately before the surgery on August 8, 1995"; (2) "claimant's cumulative injury manifested itself on July 8, 1995"; (3) "the injury arose out of and was in the course of claimant's employment"; and (4) "claimant's current shoulder condition is causally related to his work injury of July 8, 1995 ."
Conclusion.
In summary, we conclude the agency erred as a matter of law in the remand decision when it viewed the date of Thompson's rotator cuff tear as the dispositive fact on the causation question in this cumulative injury case. Accordingly, we conclude this case must again be remanded to the agency for a redetermination of the causation question after application of the established legal principles pertaining to cumulative injuries.