IN THE COURT OF APPEALS OF IOWA
No. 16-0505 Filed January 11, 2017
ALFREDO AYALA, Petitioner-Appellant,
vs.
TYSON FOODS INC., Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
Claimant appeals the denial of his petition for review-reopening.
AFFIRMED.
Andrew W. Bribriesco and William J. Bribriesco of Bribriesco Law Firm,
Bettendorf, for appellant.
Jean Z. Dickson of Betty, Neuman & McMahon, P.L.C., Davenport, for
appellee.
Considered by Danilson, C.J., and Doyle and McDonald, JJ. 2
MCDONALD, Judge.
Alfred Ayala challenges the Iowa Workers’ Compensation Commissioner’s
decision denying Ayala’s review-reopening petition to increase his permanent
disability benefits. Ayala contends the commissioner’s decision was irrational,
illogical, and wholly unjustifiable. Ayala also contends the decision is not
supported by substantial evidence.
Judicial review of final agency action is limited. See Iowa Code §
17A.19(10). “The administrative process presupposes judgment calls are to be
left to the agency. Nearly all disputes are won or lost there.” Sellers v. Emp’t
Appeal Bd., 531 N.W.2d 645, 646 (Iowa Ct. App. 1995) (citation omitted). Rarely
will the judiciary reverse final agency action on the ground the decision is
irrational or not supported by substantial evidence. See McComas-Lacina
Constr. v. Drake, No. 15-0922, 2016 WL 2744948, at *1 (Iowa Ct. App. May 11,
2016) (“A case reversing final agency action on the ground the agency’s action is
unsupported by substantial evidence or is irrational, illogical, or wholly
unjustifiable is the Bigfoot of the legal community—an urban legend, rumored to
exist but never confirmed.”).
At all times material hereto, Ayala was employed by Tyson Foods, Inc.
Ayala suffered a compensable back injury in 2006. His doctor assigned him a
rating of thirteen percent partial impairment to the body as a whole and imposed
work restrictions, including not lifting over twenty pounds and avoiding repetitive
bending, twisting, and stooping. In 2009, the agency found Ayala suffered a
forty-five percent industrial disability and awarded him commensurate permanent
disability benefits. Neither Ayala nor Tyson appealed the prior agency decision. 3
In February 2013, Ayala filed a petition for review-reopening, claiming his
industrial disability had increased and he was entitled to additional industrial
disability benefits.
The workers’ compensation statutory scheme contemplates that future developments (post-award and post-settlement developments), including the worsening of a physical condition or a reduction in earning capacity, should be addressed in review- reopening proceedings. The review-reopening claimant need not prove, as an element of his claim, that the current extent of disability was not contemplated by the commissioner (in the arbitration award) or the parties (in their agreement for settlement).
Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 392 (Iowa 2009) (citation omitted).
Instead, the claimant must prove by a preponderance of the evidence an
entitlement to increased compensation. See Iowa Code § 86.14(2) (“In a
proceeding to reopen an award for payments or agreement for settlement as
provided by section 86.13, inquiry shall be into whether or not the condition of the
employee warrants an end to, diminishment of, or increase of compensation so
awarded or agreed upon.”); E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 829
(Iowa 1994) (“The claimant carries the burden of establishing by a
preponderance of the evidence that, subsequent to the date of the award under
review, he or she has suffered an impairment or lessening of earning capacity
proximately caused by the original injury.”). In the context of an industrial
disability determination, this requires the claimant establish a “reduction in the
employee’s earning capacity.” Iowa Code § 85.34(2)(u). “Factors that should be
considered [in assessing industrial disability] include the employee’s functional
disability, age, education, qualifications, experience, and the ability of the 4
employee to engage in employment for which the employee is fitted.” Quaker
Oats Co. v. Ciha, 552 N.W.2d 143, 157 (Iowa 1996).
The commissioner found Ayala had not proved any increase in his
industrial disability and denied the petition. The record reflects Ayala underwent
fusion surgery in May 2012. He returned to work in October 2012. In 2013, his
doctor, Dr. Sergio Mendoza, found Ayala had sustained eighteen percent partial
impairment to the body as a whole and imposed a restriction of not lifting more
than fifty pounds. Ayala chose to do a reevaluation in May 2014. His doctor, Dr.
Robert Milas, increased Ayala’s impairment rating to twenty-three percent. He
also recommended restricting lifting to twenty pounds. Ayala complained of new
symptoms associated with his injury, including numbness in his feet and difficulty
sleeping. The commissioner acknowledged the medical evidence but also found
there had been no change in Ayala’s earning capacity. Ayala was able to
manage his pain with over-the-counter medication. His work restrictions
remained largely unchanged or lessened. Ayala remained employed by Tyson in
a position within his work restrictions. He earned $14.00 per hour—more than at
the time of the initial decision. He worked approximately forty to fifty hours per
week. He had not suffered any absenteeism due to his impairment.
Ayala contends the commissioner’s decision was irrational, illogical, and
wholly unjustifiable. Ayala argues the commissioner improperly considered the
work accommodations provided Ayala and Ayala’s actual earnings. Where, as
here, the application of law to fact “has clearly been vested by a provision of law
in the discretion of the agency,” the court will disturb the commissioner’s decision
only where it is “irrational, illogical, or wholly unjustifiable.” Iowa Code § 5
17A.19(10)(m); see Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 856–57 (Iowa
2009) (finding because the claimant’s “challenge to the agency’s industrial
disability determination is a challenge to the agency’s application of law to the
facts, we review this issue under the ‘irrational, illogical, or wholly unjustifiable’
standard.” (citation omitted)). “A decision is ‘irrational’ when it is ‘not governed by
or according to reason.’ A decision is ‘illogical’ when it is ‘contrary to or devoid of
logic.’ A decision is ‘unjustifiable’ when it has no foundation in fact or reason.”
Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 432 (Iowa
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IN THE COURT OF APPEALS OF IOWA
No. 16-0505 Filed January 11, 2017
ALFREDO AYALA, Petitioner-Appellant,
vs.
TYSON FOODS INC., Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
Claimant appeals the denial of his petition for review-reopening.
AFFIRMED.
Andrew W. Bribriesco and William J. Bribriesco of Bribriesco Law Firm,
Bettendorf, for appellant.
Jean Z. Dickson of Betty, Neuman & McMahon, P.L.C., Davenport, for
appellee.
Considered by Danilson, C.J., and Doyle and McDonald, JJ. 2
MCDONALD, Judge.
Alfred Ayala challenges the Iowa Workers’ Compensation Commissioner’s
decision denying Ayala’s review-reopening petition to increase his permanent
disability benefits. Ayala contends the commissioner’s decision was irrational,
illogical, and wholly unjustifiable. Ayala also contends the decision is not
supported by substantial evidence.
Judicial review of final agency action is limited. See Iowa Code §
17A.19(10). “The administrative process presupposes judgment calls are to be
left to the agency. Nearly all disputes are won or lost there.” Sellers v. Emp’t
Appeal Bd., 531 N.W.2d 645, 646 (Iowa Ct. App. 1995) (citation omitted). Rarely
will the judiciary reverse final agency action on the ground the decision is
irrational or not supported by substantial evidence. See McComas-Lacina
Constr. v. Drake, No. 15-0922, 2016 WL 2744948, at *1 (Iowa Ct. App. May 11,
2016) (“A case reversing final agency action on the ground the agency’s action is
unsupported by substantial evidence or is irrational, illogical, or wholly
unjustifiable is the Bigfoot of the legal community—an urban legend, rumored to
exist but never confirmed.”).
At all times material hereto, Ayala was employed by Tyson Foods, Inc.
Ayala suffered a compensable back injury in 2006. His doctor assigned him a
rating of thirteen percent partial impairment to the body as a whole and imposed
work restrictions, including not lifting over twenty pounds and avoiding repetitive
bending, twisting, and stooping. In 2009, the agency found Ayala suffered a
forty-five percent industrial disability and awarded him commensurate permanent
disability benefits. Neither Ayala nor Tyson appealed the prior agency decision. 3
In February 2013, Ayala filed a petition for review-reopening, claiming his
industrial disability had increased and he was entitled to additional industrial
disability benefits.
The workers’ compensation statutory scheme contemplates that future developments (post-award and post-settlement developments), including the worsening of a physical condition or a reduction in earning capacity, should be addressed in review- reopening proceedings. The review-reopening claimant need not prove, as an element of his claim, that the current extent of disability was not contemplated by the commissioner (in the arbitration award) or the parties (in their agreement for settlement).
Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 392 (Iowa 2009) (citation omitted).
Instead, the claimant must prove by a preponderance of the evidence an
entitlement to increased compensation. See Iowa Code § 86.14(2) (“In a
proceeding to reopen an award for payments or agreement for settlement as
provided by section 86.13, inquiry shall be into whether or not the condition of the
employee warrants an end to, diminishment of, or increase of compensation so
awarded or agreed upon.”); E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 829
(Iowa 1994) (“The claimant carries the burden of establishing by a
preponderance of the evidence that, subsequent to the date of the award under
review, he or she has suffered an impairment or lessening of earning capacity
proximately caused by the original injury.”). In the context of an industrial
disability determination, this requires the claimant establish a “reduction in the
employee’s earning capacity.” Iowa Code § 85.34(2)(u). “Factors that should be
considered [in assessing industrial disability] include the employee’s functional
disability, age, education, qualifications, experience, and the ability of the 4
employee to engage in employment for which the employee is fitted.” Quaker
Oats Co. v. Ciha, 552 N.W.2d 143, 157 (Iowa 1996).
The commissioner found Ayala had not proved any increase in his
industrial disability and denied the petition. The record reflects Ayala underwent
fusion surgery in May 2012. He returned to work in October 2012. In 2013, his
doctor, Dr. Sergio Mendoza, found Ayala had sustained eighteen percent partial
impairment to the body as a whole and imposed a restriction of not lifting more
than fifty pounds. Ayala chose to do a reevaluation in May 2014. His doctor, Dr.
Robert Milas, increased Ayala’s impairment rating to twenty-three percent. He
also recommended restricting lifting to twenty pounds. Ayala complained of new
symptoms associated with his injury, including numbness in his feet and difficulty
sleeping. The commissioner acknowledged the medical evidence but also found
there had been no change in Ayala’s earning capacity. Ayala was able to
manage his pain with over-the-counter medication. His work restrictions
remained largely unchanged or lessened. Ayala remained employed by Tyson in
a position within his work restrictions. He earned $14.00 per hour—more than at
the time of the initial decision. He worked approximately forty to fifty hours per
week. He had not suffered any absenteeism due to his impairment.
Ayala contends the commissioner’s decision was irrational, illogical, and
wholly unjustifiable. Ayala argues the commissioner improperly considered the
work accommodations provided Ayala and Ayala’s actual earnings. Where, as
here, the application of law to fact “has clearly been vested by a provision of law
in the discretion of the agency,” the court will disturb the commissioner’s decision
only where it is “irrational, illogical, or wholly unjustifiable.” Iowa Code § 5
17A.19(10)(m); see Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 856–57 (Iowa
2009) (finding because the claimant’s “challenge to the agency’s industrial
disability determination is a challenge to the agency’s application of law to the
facts, we review this issue under the ‘irrational, illogical, or wholly unjustifiable’
standard.” (citation omitted)). “A decision is ‘irrational’ when it is ‘not governed by
or according to reason.’ A decision is ‘illogical’ when it is ‘contrary to or devoid of
logic.’ A decision is ‘unjustifiable’ when it has no foundation in fact or reason.”
Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 432 (Iowa
2010) (citations omitted).
We cannot conclude the commissioner’s decision was irrational, illogical,
or wholly unjustifiable. The commissioner considered Ayala’s functional
impairment. However, functional impairment is a single, but not controlling,
factor in determining the extent of an industrial disability. See Hill v. Fleetguard,
Inc., 705 N.W.2d 665, 673 (Iowa 2005). The commissioner properly considered
other factors, including Ayala’s current employment and work conditions, to the
extent those factors were probative of Ayala’s earning capacity at the time of the
hearing. This was a permissible consideration. See Warren Props. v. Stewart,
864 N.W.2d 307, 317 (Iowa 2015) (stating actual earnings can create a
presumption of earning capacity that can be overcome with other evidence
showing the claimant’s “actual earnings do not fairly reflect claimant’s capacity.”
(citation omitted)); Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 18 (Iowa 1997)
(“We think the proper rule should be that an employer’s special accommodation
for an injured worker can be factored into the award determination to the limited
extent the work in the newly created job discloses that the worker has a 6
discerned earning capacity. To qualify as discernible, it must appear that the
new job is not just ‘make work’ provided by the employer, but is also available to
the injured worker in the competitive market.”); Wright v. Midamerican Energy
Co., No. 03-0496, 2004 WL 360475, at *2 (Iowa Ct. App. Feb. 27, 2004) (stating
actual earnings are probative of earning capacity).
Ayala also argues the commissioner’s decision was not supported by
substantial evidence. In support of this argument, Ayala references medical
evidence establishing his physical condition may be worsening. “‘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). “Evidence is not insubstantial merely because different
conclusions may be drawn from the same evidence.” Cedar Rapids Cmty. Sch.
Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa 2011); see McComas-Lacina Constr.,
2016 WL 2744948, at *1.
We conclude the agency’s findings are supported by substantial evidence.
“[T]he question on appeal is not whether the evidence supports a different finding
than the finding made by the commissioner, but whether the evidence ‘supports
the findings actually made.’” Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa
2006) (citation omitted). The commissioner’s findings are applied broadly “to
uphold his decision.” Beier Glass Co. v. Brundige, 329 N.W.2d 280, 282 (Iowa
1983). While there may be some medical evidence supporting the finding that
Ayala’s physical condition has worsened since the time of the original industrial 7
disability award, the medical evidence is only a single factor in determining
industrial disability. Other evidence supported the agency’s finding that Ayala’s
earning capacity remained unchanged. As the district court explained:
While Ayala underwent surgery following the original arbitration decision, there is substantial evidence to indicate that it did not further hinder his earning capacity. He has been fully able to perform in the same capacity as he did at the time of the Arbitration Decision. He does not require any further accommodations than what he did at the time of the Arbitration Decision. His work restrictions, if changed, have improved. He is content in his job. He does not take prescription medicine for pain. A reasonable mind would deem this evidence adequate to support the conclusion that Ayala’s present condition is no worse than it was in September of 2009.
We agree with the district court’s conclusion.
For the foregoing reasons, we affirm the judgment of the district court.