Opinion
No. 2-401 / 01-1782.
Filed July 31, 2002.
Appeal from the Iowa District Court for Des Moines County, R. DAVID FAHEY, Jr., Judge.
Employer appeals from a district court ruling on judicial review affirming an award of workers' compensation benefits to its employee. AFFIRMED.
James M. Peters and Elizabeth V. Croco of Simmons, Perrine, Albright Ellwood, P.L.C., Cedar Rapids, for appellant.
James P. Hoffman, Keokuk, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Wal-Mart appeals from a district court ruling on judicial review affirming an award of workers' compensation benefits to its employee Sylvia Fulk. We affirm.
I. Background Facts and Proceedings.
Sylvia Fulk began driving a semi truck for Wal-Mart in the late 1980's when she was approximately fifty-years-old. Prior to that time she had worked as a housewife, a part-time bookkeeper, and had helped her husband farm. On May 11, 1998, while attempting to release the fifth wheel from her semi, Fulk suffered an injury to her back. When she awoke the following day she had difficulty moving. Fulk was off work until September of 1998, when she returned to work on a regular full-time schedule. She later switched to a seven days on, seven days off schedule. However, she was unable to work seven consecutive days due to the back pain she was experiencing. In July of 1999, Fulk hit a rut in the road while driving her truck and later experienced a feeling of near paralysis from the waist down. She never returned to work following this incident.
Based on the injuries sustained in the incident, Fulk brought a workers' compensation proceeding seeking permanent disability benefits. Wal-Mart challenged the extent of Fulk's industrial disability and claimed her disability was not causally related to the work injury. Following a hearing, the deputy commissioner awarded Fulk permanent total disability benefits. The workers' compensation commissioner affirmed the deputy's decision on intra-agency appeal, and the district court later affirmed the commissioner's appeal decision on judicial review. Wal-Mart appeals.
II. Scope of Review.
Our review, like that of the district court, is on error. Honeywell v. Allen Drilling Co ., 506 N.W.2d 434, 435 (Iowa 1993). We reverse the commissioner's findings of fact if they are unsupported by substantial evidence in the record made before the agency when the record is viewed as a whole. Iowa Code § 17A.19(8)(f) (2001). Evidence is substantial when reasonable minds would accept it as adequate to reach the same findings. Honeywell , 506 N.W.2d at 435. The mere fact that we could draw inconsistent conclusions from the same evidence does not mean the commissioner's conclusions were unsupported by substantial evidence. Terwilliger v. Snap-On Tools Corp ., 529 N.W.2d 267, 271 (Iowa 1995). The ultimate question is not whether the evidence supports a different finding but whether it supports the finding the commissioner actually made. Id .
III. Industrial Disability.
Wal-Mart first asserts Fulk's award of industrial disability benefits was improper in that she had not reached maximum medical improvement (MMI) and improvement in her condition was still anticipated. An award of permanency benefits is appropriate at the termination of the "healing period." Iowa Code § 85.34(2). The healing period may be characterized as that period during which there is reasonable expectation of improvement of the disabling condition. Armstrong Tire Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa Ct.App. 1981). If it is not likely that further treatment of continuing pain, however soothing to the claimant, will decrease the extent of permanent industrial disability, then continued pain management should not prolong the healing period. Pitzer v. Rowley Interstate, 507 N.W.2d 389, 392 (Iowa 1993).
It is clear that at the time of the hearing on March 15, 2000, Fulk was continuing to receive pain management treatment. However, on July 7, 1999, Dr. Steven Thatcher noted treatment of Fulk's low back injury had been ineffective, found the claimant could no longer drive a truck, and restricted her from such activity on a permanent basis. In addition, on January 3, 2000, Dr. Steven Beer opined Fulk had reached MMI. We conclude substantial evidence supports the agency's determination that Fulk reached MMI, notwithstanding the ongoing treatment of her pain. Accordingly, the agency properly addressed the nature and extent of Fulk's permanent disability.
IV. Causation.
Wal-Mart does not dispute that Fulk suffered a work-related injury to her back on May 11, 1998. It does, however, claim substantial evidence does not support the agency's finding that Fulk's subsequent complaints are causally related to the May 11, 1998 injury. In particular, Wal-Mart asserts Fulk's recent complaints of right lower extremity pain and the appearance of a disc protrusion at the L4-L5 level are unrelated to the 1998 injury.
The burden of proof was on Fulk to prove her employment incident was a proximate cause of the health impairment on which she bases her claim; a possibility is insufficient; a probability is necessary. Sondag v. Ferris Hardware , 220 N.W.2d 903, 905 (Iowa 1974). Whether an injury or disease has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony. Bodish v. Fischer, Inc ., 257 Iowa 516, 521, 133 N.W.2d 867, 870 (Iowa 1965).
Following the May 11, 1998 incident, Fulk experienced back and primarily left leg pain. An MRI performed in July of 1998 showed some degenerative disc bulging at the L2-L3 and L4-L5 levels. In December of 1999, Fulk reported to Dr. Steven Beer that she was experiencing substantial right leg pain. She informed Dr. Beer this had been relatively constant throughout her history of back pain. On January 3, 2000, Dr. Beer opined Fulk's musculoskeletal symptoms were a result of her May 1998 injury while unhooking the fifth wheel. This opinion was obviously made with the knowledge Fulk was experiencing pain not only in her back but also in her right leg and with an awareness of the 1998 MRI and the1999 CT scan which reported findings at the L4-L5 level. Furthermore, it is clear Fulk was asymptomatic both in the back and the legs before the 1998 injury. Dr. Steven Thatcher opined that the aggravation from Fulk's 1998 injury aggravated and flared up her underlying degenerative disc condition. We conclude the foregoing constitutes substantial evidence in support of the agency's finding of causation.
V. Total Disability.
Wal-Mart next asserts the agency erred in concluding Fulk suffered a total disability. See Iowa Code § 85.34(3) (2001) (fixing compensation for injury causing permanent total disability). We disagree, and conclude substantial evidence supports that Fulk suffered a permanent total disability.
Because Fulk suffered a back injury, compensation is awarded on the basis of industrial disability. Industrial disability is arrived at by determining the loss to the employee's earning capacity. Mortimer v. Fruehauf Corp ., 502 N.W.2d 12, 14 (Iowa 1993). Because industrial disability measures the loss of earning capacity rather than mere physical or mental impairment, the commissioner must consider the employee's functional impairment, age, education, work experience, and adaptability to retraining, to the extent any of these factors affect the employee's prospects for relocation in the job market. Klein v. Furnas Elec. Co ., 384 N.W.2d 370, 374 (Iowa 1986). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total industrial disability. See McSpadden v. Big Ben Coal Co ., 288 N.W.2d 181, 192 (Iowa 1980).
In her appeal decision, the Chief Deputy Workers' Compensation Commissioner made detailed findings of fact on this total disability issue:
[Fulk] is an older worker who has a limited formal education and limited work experience. Claimant has worked in physically demanding positions most, if not all of her adult working life. It is doubtful that claimant can be retrained to work in a job which will afford her any kind of job opportunities, benefits, comparable salary, or stability. Claimant would be unable to return to any of her previous, labor-type jobs as well. Driving equipment on a farm would mandate the same physical requirements as driving a semi-truck. Any office or bookkeeping skills claimant once possessed appear to be so out dated that they are not transferable to today's work place. The medical evidence supports a finding that claimant is unable to return to work as a truck driver, the position she held when she was injured. At least one of the treating physicians, Dr. Thatcher, indicated on July 7, 1999 that claimant should no longer be driving a truck due to her back condition. Objective findings in the record, including a herniated disc, and nerve impingement, and the impairment ratings further support a finding that claimant is permanently and totally disabled.
We must decide if substantial evidence supports these agency findings. Honeywell, 506 N.W.2d at 437. We conclude the commissioner's findings are amply supported and therefore affirm on this issue.
VI. Consideration of Claimant's Age.
Finally, Wal-Mart contends the commissioner erred in refusing to consider Fulk's proximity to retirement as a factor in calculating her benefits. In this regard, it asks us to overrule our supreme court's determination to the contrary in Second Injury Fund v. Nelson, 544 N.W.2d 258, 266 (Iowa 1995). We decline Wal-Mart's request to do so.
AFFIRMED.