Steven J. Bell Jr. v. 3e, A/K/A Electrical & Engineering Co., and Travelers indemnity/ct

• Court: Court of Appeals of Iowa
• Decided: March 11, 2015
• Docket: 14-0044
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0044 Filed March 11, 2015

STEVEN J. BELL JR., Petitioner-Appellant,

vs.

3E, a/k/a ELECTRICAL & ENGINEERING CO., and TRAVELERS INDEMNITY/CT, Respondents-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.

An employee appeals a judicial review decision affirming the award by the

workers’ compensation commissioner. AFFIRMED.

Mark Soldat of Soldat, Parrish-Sams & Gustafson, P.L.C., West Des

Moines, for appellant.

James M. Ballard of Ballard Law Firm, P.L.L.C., Waukee, for appellees.

Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

TABOR, J.

Employee Steven Bell challenges a finding by the Iowa Workers’

Compensation Commissioner that he suffered a five percent industrial disability

following a workplace fall. Bell claims the commissioner erred in not considering

his possible career as a firefighter in determining his lost earning capacity. Bell

also claims the commissioner failed to make the credibility findings required by

Iowa Code section 17A.16 (2011). Bell further argues the commissioner

prematurely decided the extent of permanent disability.

The commissioner adopted the deputy’s decision, which explained the

deputy’s reasoning and pointed to relevant evidence in the record supporting the

conclusions. Substantial evidence supports the commissioner’s findings of five

percent industrial disability and maximum medical improvement. Accordingly, we

affirm.

I. Background Facts and Proceedings

Steven Bell Jr. was working as an “inside sales” representative for

Electrical & Engineering Co. (3E). He was on his way to lunch on March 19,

2010, when he slipped and fell in the 3E lobby. At the time of the fall, Bell was

forty-two years old.

The fall resulted in a left wrist sprain, a trauma-induced ganglion cyst,

lower back strain, and a contusion to the left shoulder and elbow. On March 22,

2010, Bell saw Dr. Richard McCaughey, D.O. Dr. McCaughey diagnosed Bell

with “residual tenderness” in his left elbow, wrist, shoulder, and right lower back.

An MRI on March 23, 2010, revealed “arthritic changes with a bony hypertrophy 3

and soft tissue hypertrophy at the acromioclavicular joint” along with a “tiny

inferior surface tear involving the supraspinatus tendon anteriorly.” Bell returned

to work in late March, restricted from using his left arm. Bell saw Dr. Barron

Bremner, D.O. for his wrist and shoulder. Dr. Bremner recommended physical

therapy and predicted Bell “should have a full recovery.”

Bell underwent surgery, performed by Dr. Bremner, to remove the cyst

from his wrist in early May and continued physical therapy for his wrist and

shoulder. After leaving physical therapy in mid-May 2010, Bell returned at the

end of the month complaining of increased back pain. Dr. McCaughey ordered

an MRI for Bell’s back. The MRI, done on June 22, 2010, revealed no problems

or “abnormalities of the lumbar spine.” On June 24, 2010, Dr. McCaughey

released Bell to work without restrictions.

On June 4, 2010, Bell filed a petition with the workers’ compensation

commission. A deputy commissioner held a hearing on May 4, 2011, and filed

her decision on July 21, 2011. The deputy found Bell’s accident left him with a

five percent industrial disability. On October 15, 2012, the commissioner

adopted the findings of the deputy. Bell sought judicial review, and on July 9,

2013, the district court affirmed the commissioner on all grounds.

Bell now appeals.

II. Scope and Standards of Review

Our review is governed by Iowa Code chapter 17A. See Mike Brooks, Inc.

v. House, 843 N.W.2d 885, 888 (Iowa 2014). Under chapter 17A, the district

court acts in an appellate capacity to correct errors of law. Id. In reviewing the 4

district court’s decision, we apply the standards of chapter 17A to determine

whether we reach the same conclusions as the district court. Id. at 889. If we

do, we affirm; if not, we reverse. Id.

We have authority to affirm the agency action or remand to the agency for

further proceedings. Iowa Code § 17A.19(10). We may “reverse, modify, or

grant other appropriate relief” if we determine the agency’s ruling was “not

supported by substantial evidence” or was otherwise legally flawed. Id. On

appeal, Bell alleges error under the following paragraphs of Iowa Code section

17A.19(10)—(b), (c), (f), (i), (j), (m), and (n).

Substantial evidence is defined as “the quantity and quality of evidence

that would be deemed sufficient by a . . . reasonable person, to establish the fact

at issue.” Iowa Code § 17A.19(10)(f)(1). We give significant deference to the

agency’s credibility findings. Lange v. Iowa Dep’t of Revenue, 710 N.W.2d 242,

247 (Iowa 2006). As reviewing courts, we can only grant relief if the agency’s

factual determination “is not supported by substantial evidence in the record

before the court when that record is reviewed as a whole.” Id.

Because Bell’s challenge to the commissioner’s industrial disability

determination depends on the application of law to facts, we will not disturb the

ruling unless it is “irrational, illogical, or wholly unjustifiable.” See Neal v. Annett

Holdings, Inc., 814 N.W.2d 512, 526 (Iowa 2012). 5

III. Analysis

A. Lost Earning Capacity

Bell first argues the commissioner erred in calculating the extent of his

industrial disability because the deputy’s decision rejected evidence in the record

comparing his pre-injury and post-injury capacity to be a firefighter.

Industrial disability measures an injured worker’s lost earning capacity.

Second Injury Fund v. Shank, 516 N.W.2d 808, 813 (Iowa 1994). Relevant

factors for determining disability include the employee’s functional impairment,

age, intelligence, education, qualifications, experience, and the ability of the

employee to engage in employment for which he is suited. Id. Considering

these factors, the focus is not solely on what the worker can and cannot do; the

focus is on the ability of the worker to be gainfully employed. Guyton v. Irving

Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985).

The agency record included evidence concerning Bell’s aspirations to be a

firefighter. Bell received his degree in fire and science technology from Des

Moines Area Community College (DMACC) in 1997. He passed both the written

and physical agility examinations required to serve as a firefighter. His name

appeared on the hiring list for the Des Moines Fire Department, but he was never

offered a firefighter position. Bell served as a volunteer firefighter in Grimes for

two years. Bell has not applied for any firefighter positions since 1997. After

1997, Bell worked in counter sales for 3E, then in 2005 Bell moved to inside

sales. The inside sales job requires Bell to enter orders into his computer at his

desk in the office. 6

On appeal, Bell focuses on a footnote in the deputy’s decision and

adopted by the commissioner, which is somewhat dismissive of the proof Bell

had the capacity to be a firefighter. That footnote stated:

There was a great deal of evidence on [Bell’s] desire to someday get back to being a firefighter. He claimed that this was his dream position yet between 1997 when he quit because of the birth of his son and prior to his injury in 2010, [Bell] never applied for another position, either permanent or volunteer. Because of this, [the deputy commissioner] did not consider [Bell’s] industrial disability to include firefighter positions. If anything, the multitude of evidence regarding [Bell’s] desire to be a firefighter was an attempt to exaggerate his claim and incorrectly inflate [Bell’s] loss of employability.

Bell argues this footnote shows the commissioner misapplied the legal

principles governing industrial disability determinations. He claims the workers’

compensation statute does not require an employee to have pursued a particular

position to establish he or she has the capacity to perform it. Bell contends the

commissioner failed to consider evidence Bell had the capacity to generate more

earnings as a firefighter than the income he received from working in sales for

3E. Bell requests we reverse and remand for the commissioner to consider his

earning capacity as a firefighter.

On judicial review, the district court decided Bell “provided no objective

proof that he was capable of becoming a firefighter immediately prior to his 2010

injury. Therefore, the court finds that the commissioner properly considered the

fact of Bell’s minimal work experience as a firefighter when he chose not to

include any lost earning capacity from employment as a firefighter.”

We agree with the district court’s analysis. The commissioner noted Bell’s

DMACC coursework and his work history as a volunteer firefighter. The 7

commissioner also observed that Bell “quit the volunteer firefighter position to

spend more time with his son” in 1997 and had not worked in a physically

demanding position since then. Bell presented no objective evidence he was still

capable of being a firefighter; twelve years had passed between Bell taking the

exams and his workplace injury. The commissioner properly considered Bell’s

fitness for employment as a firefighter and determined the evidence did not show

he had the current ability to work in that field.

B. Section 17A.16

Bell next argues the arbitration decision drafted by the deputy

commissioner and adopted by the commissioner failed to satisfy Iowa Code

section 17A.16 because it did not separate its findings of fact from its conclusions

of law and did not offer credibility findings concerning the witnesses.

Section 17A.16 requires the commissioner to give “findings of fact and

conclusions of law, separately stated.” Iowa Code § 17A.16. The provision also

mandates that the commissioner’s factual findings “if set forth in statutory

language, shall be accompanied by a concise and explicit statement of

underlying facts supporting the findings.” Iowa Code § 17A.16. This mandate is

consistent with “the commissioner’s duty as the trier of fact to determine the

credibility of the witnesses, weigh the evidence, and decide the facts in issue.”

Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 259–60 (Iowa 2012).

We do not hold the commissioner to technical compliance with this

provision as long as we can determine where finding of facts end and

conclusions of law begin or otherwise can track the commissioner’s analytical 8

process. See Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 137 (Iowa Ct. App.

2008). If we can work backward from the agency’s ultimate outcome, we will not

find error under section 17A.16. Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d

904, 909 (Iowa 1987).

The agency decision is divided into a finding-of-fact section and a

conclusion-of-law section. The decision logically sets forth the commissioner’s

thought process. The decision gives specific findings on Bell’s credibility and

while other credibility findings are not explicit, they can be discerned from the

direction of the analysis. See Second Injury Fund v. Braden, 459 N.W.2d 467,

471 (Iowa 1990) (finding credibility determination inhered in ruling when order

contained no specific discussion of credibility). On this record, we find the

agency complied with section 17A.16. See Bridgestone/Firestone, Pac. Emp’rs

Ins. v. Cathy Accordino, 561 N.W.2d 60, 62 (Iowa 1997).

C. Maximum Medical Improvement

In his final assignment of error, Bell argues the issue of permanent

disability was not ripe for adjudication because the doctors did not find he had

reached maximum medical improvement (MMI) for his back injury. MMI refers to

stabilization of the worker’s condition or at least a finding the condition is not

likely to abate in the future despite medical treatment. See Dunlap v. Action

Warehouse, 824 N.W.2d 545, 557 (Iowa Ct. App. 2012). Before a worker has

achieved MMI, only temporary benefits are available. See Bell Bros. Heating &

Air Conditioning v. Gwinn, 779 N.W.2d 193, 200 (Iowa 2010). 9

Dr. John D. Kuhnlein, D.O. performed an independent medical

examination (IME) of Bell on February 23, 2011. Bell asserts Dr. Kuhnlein “only

indicated conditionally” that Bell had “reached maximum medical improvement

for his back pain without further treatment on June 24, 2010, his last visit with Dr.

McCaughey.” Bell contends the commissioner’s decision on permanent benefits

violated the dictates of Bell Bros., 779 N.W.2d at 201.

3E argues the commissioner’s decision that Bell had reached MMI was

supported by substantial evidence. Dr. Kuhnlein stated: “Mr. Bell reached

maximum medical improvement for his upper extremity conditions on November

7, 2010, six months after surgery.” Dr. Kuhnlein further opined Bell reached MMI

for his back in June 2010. 3E asserts that when Dr. Kuhnlein made the

statement “without further treatment” he was only referring to future treatment if

Bell could not tolerate the back pain, not future healing.

Dr. Kuhnlein explained:

I would only suggest a pain specialist if his current treatment is not adequate to treat his back pain. Mr. Bell may need to acknowledge that he will have some ongoing back pain for the foreseeable future, and, only if it is unmanageable, would he need to see a chronic pain specialist for his back.

We agree with 3E. Reading the full opinion of Dr. Kuhnlein, it is evident the

expert believed Bell had reached MMI for his back injury and only suggested

future treatment for pain management.

The commissioner granted future alternative care for any ongoing pain

treatment. MMI and alternative care are not necessarily mutually exclusive. Our

supreme court has decided ongoing pain does not extend the healing period if it 10

does not decrease the industrial disability. Pitzer v. Rowley Interstate, 507

N.W.2d 389, 392 (Iowa 1993). Here, the record shows any future treatments

anticipated by Dr. Kuhnlein would be aimed at managing Bell’s back pain. We

find that in accordance with Bell Bros., the question of permanent impairment

was ripe for the commissioner’s consideration.

AFFIRMED.