Lithcote Co. v. Ballenger

471 N.W.2d 64, 1991 Iowa App. LEXIS 31, 1991 WL 91015
CourtCourt of Appeals of Iowa
DecidedApril 2, 1991
Docket90-46
StatusPublished
Cited by14 cases

This text of 471 N.W.2d 64 (Lithcote Co. v. Ballenger) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lithcote Co. v. Ballenger, 471 N.W.2d 64, 1991 Iowa App. LEXIS 31, 1991 WL 91015 (iowactapp 1991).

Opinions

DONIELSON, Presiding Judge.

The employer-appellant, Lithcote Company (Lithcote), seeks review of the findings of fact, conclusions of law, and judgment filed December 13, 1989, affirming the appeal decision of the industrial commissioner filed on December 30, 1988. In the appeal decision, the commissioner affirmed with modification an arbitration decision filed by a deputy industrial commissioner who concluded: claimant-appellee sustained an injury to his back on January 16, 1984, resulting in damage to the L4-5 intervertebral lumbar disc and L5-S1 intervertebral lumbar disc; claimant was entitled to healing period benefits from January 19, 1984, until August 26, 1985, except for a five-day period; and claimant had sustained a thirty percent industrial disability. The deputy commissioner also ordered the employer to pay the costs of the action. The commissioner modified the decision to disallow the claimant reimbursement for production of duplicative evidence, but affirmed the balance of the decision. Lithcote appealed and the district court affirmed.

Lithcote appeals. It maintains the district court erred in: 1) finding that the employee had injured two lumbar discs rather than one on the date of his injury; 2) determining the length of the healing period; and 3) affirming the excessive award of industrial disability. We now affirm.

The claimant, Chet Ballenger, was twenty-seven years old at the time of the hearing. He had a family and had left school after the eighth grade to work. Prior to working for Lithcote, he had worked in a variety of jobs, including bartending, commercial fishing, clamming, carpentry, painting, masonry work, plumbing, and electrical work. Most of these jobs required hard physical exertion.

On January 16, 1984, the date Ballenger injured his back, he was working as a “helper.” This involved inspecting, cleaning, and painting railroad cars. Ballenger was inside a railroad car using a grinder when the scaffold on which he was standing shifted. Ballenger fell. At the time of the injury, he noticed only a skinned leg. However, after a couple of days Ballenger began to notice numbness in his feet. He then sought professional medical attention.

To summarize a rather lengthy medical history, Ballenger saw several physicians, received different and sometimes conflicting medical advice, and underwent several different types of treatment, including surgery. His overall condition following the fall was never completely the same. His treating physician placed lifting restrictions on him.

Following the injury Ballenger felt he was medically incapable of performing the same type of work he had previously performed. With the exception of a five-day period when he made an unsuccessful attempt, Ballenger did not return to work until August 26, 1985. Ballenger then worked painting stencils on the sides of railroad ears.

By the time of the hearing, before the industrial commissioner, Ballenger’s injuries included damage to his L4-5 interver-tebral lumbar disc and also to the L5-S1 intervertebral lumbar disc. The bulging of these discs encroached upon nerve roots in his spine. He had developed degenerative arthritis. He was still experiencing pain and was taking prescription medication. The dispute before the commissioner centered around whether the fall had caused the injuries to both discs or to only one of them. After considering the conflicting medical testimony, the commissioner concluded all of the back injuries were caused [66]*66by the work-related fall. The district court affirmed the commissioner.

I. Scope of Review. Our scope of review is limited. We review to determine whether the agency decision is supported by substantial evidence when viewing the record as a whole. See Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 379 (Iowa 1986). Evidence is substantial to support an agency’s decision when a reasonable person would find it adequate to reach the given conclusion. Mercy Health Center v. State Health Facilities, 360 N.W.2d 808, 811-12 (Iowa 1985). The question is not whether the evidence might support a different finding but whether the evidence supports the findings actually made. Henry v. Iowa Dept. of Job Service, 391 N.W.2d 731, 734 (Iowa App.1986). The fact that two inconsistent conclusions can be drawn from the evidence does not mean that one of those conclusions is unsupported by substantial evidence. Id. The requirement that we take all record evidence into account in reviewing administrative findings does not detract from our duty to grant appropriate deference to the agency’s expertise. Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d 192, 195-96 (Iowa 1987).

II. Injury. The employer first contends it was error to find Ballenger sustained an injury to both the L4-5 and L5-S1 disc levels on January 16, 1984. The industrial commissioner found the assessment of Ballenger’s medical case, as determined by Doctors Beck and Neiman, as correct, as opposed to the assessments of other physicians. The employer contends it was error to accept this assessment because it was contrary to the diagnoses of the other physicians, including the claimant’s treating physician. These physicians did not attribute the claimant’s fall as the cause of the injury to the L5-S1 disc.

Here, the claimant has the burden of proving by a preponderance of the evidence that the disability on which he now bases his claim is causally related to injuries arising out of and in the course of his employment. See Iowa Code § 85.20; cf. Bodish v. Fischer, Inc., 257 Iowa 516, 519, 133 N.W.2d 867, 869 (1965). The question of causal connection is “essentially within the domain of expert testimony.” Id. at 521, 133 N.W.2d at 870 (quoting Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 383, 101 N.W.2d 167, 171 (1960)). However, the weight to be given the expert opinion is for the agency as fact finder. Id.; see also Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Expert opinion testimony, even if uncontroverted, may be accepted or rejected in whole or in part by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).

Our supreme court has already rejected the argument that a treating physician’s testimony should be, as a matter of law, given more weight than that of a later physician who examines the patient in anticipation of litigation. Rockwell, 366 N.W.2d at 192. Lithcote nonetheless claims the commissioner should have given greater weight to the opinion of Dr. Naden, the treating physician.

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Lithcote Co. v. Ballenger
471 N.W.2d 64 (Court of Appeals of Iowa, 1991)

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Bluebook (online)
471 N.W.2d 64, 1991 Iowa App. LEXIS 31, 1991 WL 91015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lithcote-co-v-ballenger-iowactapp-1991.