IN THE COURT OF APPEALS OF IOWA
No. 13-1391 Filed October 29, 2014
WEST DES MOINES COMMUNITY SCHOOLS, Plaintiff-Appellant,
vs.
JOHN FRY, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
An employer challenges an award by the Workers’ Compensation
Commissioner paying permanent partial disability benefits, healing period
benefits, alternative medical care, and expenses. AFFIRMED.
Charles E. Cutler and Amanda R. Rutherford of Cutler Law Firm, P.C.,
West Des Moines, for appellant.
Jean Mauss of Schott, Mauss & Associates, P.C., Des Moines, for
appellee.
Heard by Potterfield, P.J., and Tabor and Mullins, JJ. 2
TABOR, J.
The employer, West Des Moines Community Schools, challenges the
award of workers’ compensation benefits to school custodian John Fry. The
commissioner determined Fry lost twenty-five percent of his earning capacity due
to a cumulative injury to his left sacroiliac (SI) joint, manifested in October 2008.
The commissioner awarded permanent, partial disability benefits; healing period
benefits; alternate medical care; and expenses related to the workplace injury.
West Des Moines Schools contend the agency’s determination was not
supported by substantial evidence and its application of the cumulative injury
doctrine to the facts of this case was irrational, illogical and wholly unjustifiable.
Like the district court on judicial review, we find substantial evidence in the
record to uphold the commissioner’s decision concerning Fry’s work-related
injury and industrial disability. We also agree with the court’s conclusion that the
commissioner’s reliance on cumulative injury was rational, logical, and justifiable.
Accordingly, we affirm.
I. Background Facts and Proceedings
Fry started working as a custodian for the West Des Moines Schools in
March 2001 and was eventually promoted to head custodian at Valley
Southwoods Freshman High School. His work entailed considerable physical
activity. A written job description listed the following requirements:
Repetitious hand movement, gripping, bending, lifting, stooping, squatting, and kneeling Periodically climb stairs and ladders, and work overhead Frequently lifting and carrying 50 pounds. Periodic maneuvering, pushing and pulling of over 100 pounds 3
Constant standing, moving and walking eight or more hours per day.
Fry, who has a high school education, previously worked as a crew chief
for a carpet cleaning and upholstery business and as a production worker and
inspector for Titan Tire. While at Titan Tire, Fry suffered a serious neck injury
requiring surgery. He did not work from 1995 through 2000. Fry also sustained
injuries to his neck, back, and knees in a 2003 car accident.
Important to this appeal are two injuries incurred by Fry on two different
dates while he was on the job at Valley Southwoods. On January 15, 2007, Fry
was walking down an icy ramp leading to the back dock and lost his footing,
landing on the left side of his body. The fall left an abrasion on his left hip and
caused lasting pain in his collarbone and left shoulder area. West Des Moines
Schools placed him on light duty for a week after the fall. On October 6, 2008,
Fry was maneuvering a heavy vacuum sweeper in the media center when he felt
a “pop” and experienced stinging pain on the “left side of [his] spine, that hip
area, that SI joint.” He recalled: “I just had excruciating pain and that numb,
tingling burn sensation, the way it feels to hit your funny bone. Started up and
back down the leg.” West Des Moines Schools reassigned Fry to various light
duties until May 2009.
On December 29, 2009, Fry filed petitions for workers’ compensation for
both injuries. The employer answered and raised a statute of limitations defense.
Before the agency hearing, Fry dismissed the petition related to the January
2007 injury. The remaining petition alleged the October 2008 injury was both
traumatic and cumulative. 4
Fry was fifty-one years old when his claims came before the deputy
worker’s compensation commissioner for hearing in July 2011. The deputy
concluded Fry failed to carry his burden to prove the October 2008 injury resulted
in permanent or temporary disability. The arbitration decision was critical of the
opinion of Dr. Jacqueline Stoken, who performed an independent medical exam
(IME) on Fry, finding she “lumps together” both the January 2007 and October
2008 injuries to find permanent impairment.
Fry appealed and the commissioner1 reversed the arbitration decision,
relying on the opinion of Fry’s long-time treating physician Dr. Scott Honsey, as
well as the IME by Dr. Stoken. The commissioner highlighted Dr. Honsey’s
“unique vantage point of having treated claimant’s back since 2001” and gave
weight to Dr. Honsey’s view that Fry’s pain was in the left SI joint and worsened
after the October 2008 injury.
The commissioner then wrote: “Combining this view with the view of Dr.
Stoken that claimant’s sacroiliac injury is cumulative, placed in context both the
2007 injury and the last significant exacerbation on October 6, 2008.” The
commissioner found “the cumulative work injury beginning in January 2007 and
manifested on October 6, 2008, is a cause of the permanent impairment and
activity restrictions delineated by Dr. Stoken.” The commissioner held the
October 2008 injury resulted in a twenty-five percent loss of earning capacity and
Fry was entitled to temporary or healing period benefits, permanent partial
1 Deputy Workers’ Compensation Commissioner Larry Walshire rendered the final agency decision upon delegation of authority by the commissioner. We will refer to his ruling as the commissioner’s decision throughout our opinion. 5
disability benefits, alternate medical care, and expenses. On judicial review, the
district court affirmed the commissioner’s decision. The employer now appeals.
II. Scope and Standards of Review
In judicial review proceedings, the district court acts in an appellate
capacity, reviewing the commissioner’s decision to correct legal error. Mike
Brooks, Inc. v. House, 843 N.W.2d 885, 888 (Iowa 2014). On appeal, we apply
the standards of Iowa Code chapter 17A (2013) to decide if we reach the same
conclusion as the district court did. Id. at 889.
Whether the commissioner misapplied the cumulative injury doctrine to
Fry’s situation depends on the application of law to facts; we will not disturb that
decision unless it is “irrational, illogical, or wholly unjustifiable.” See Neal v.
Annett Holdings, Inc., 814 N.W.2d 512, 526 (Iowa 2012); see also Iowa Code
§ 17A.19(10)(m).
Whether Fry suffered a cumulative injury to his left SI joint, manifesting on
October 6, 2008, and resulting in permanent impairment is a question of fact.
The legislature vested the commissioner with discretion to decide fact questions.
Schutjer v. Algona Manor Care Center, 780 N.W.2d 549, 558 (Iowa 2010). We
defer to the commissioner’s factual determinations if they are supported by
substantial evidence in the record when that record is viewed as a whole. Id.
“Substantial evidence” is defined as “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 6
establishment of that fact are understood to be serious and of great importance.”
Iowa Code § 17A.19(10)(f)(1).
When analyzing worker’s compensation appeals, we recognize the law
“should be, within reason, liberally construed” to benefit working men and
women. See Univ. of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d 92, 96 (Iowa
2004).
III. Analysis of Employer’s Claims
A. Error Preservation
As its first assignment of error, the employer claims the commissioner
abused his discretion by “combining separate and unrelated portions of several
expert opinions to find [Fry] suffered a cumulative injury to his left sacroiliac (SI)
joint that manifested on October 6, 2008.” Specifically, the employer accuses the
commissioner of “selectively culling of parts of expert opinions” from Dr. Honsey
and Dr. Stoken and thereby “distorting these opinions almost beyond
recognition.” According to the employer, the commissioner combined Dr.
Honsey’s opinion that Fry suffered a traumatic injury to his SI joint on January 15,
2007, with Dr. Stoken’s view that Fry’s hip condition related to the cumulative
strain of his job duties of repetitive bending, twisting, and lifting, and Dr. Stoken’s
impairment rating for both the January 2007 and the October 2008 injury dates.
Fry argues the employer did not preserve this claim in the manner it is
framed on appeal. He contends the employer only alleged substantial evidence
under section 17A.19(10)(f) on judicial review, but here is alleging an error of law
under section 17A.19(10)(c) (erroneous interpretation of law). In reply, West Des 7
Moines Schools acknowledges wording the issue differently at the district court
level, but claims the district court recognized it was alleging an abuse of
discretion under section 17A.19(10)(n). West Des Moines Schools does not
point to any part of the judicial review order which addresses its appellate claim
that the commissioner lacked the discretion to “combine distinct and unrelated
sections from expert opinions.”
Our preservation rules demand an issue be presented to and passed upon
by the district court before it can be raised on appeal. See Metz v. Amoco Oil
Co., 581 N.W.2d 597, 600 (Iowa 1998); see also Hy-Vee Food Stores, Inc. v.
Iowa Civil Rights Comm’n, 453 N.W.2d 512, 527 (Iowa 1990) (issue not raised
before district court in judicial review is not preserved for appellate review).
Accordingly, we will not consider the employer’s objection to the “combining” of
expert opinions as an independent claim, though we recognize the general
complaint about the commissioner’s “distortion” of these expert opinions
underlies the employer’s substantial evidence argument.2
B. Application of Cumulative Injury Doctrine
Disabilities arising from one-time accidents are not the only kind of injuries
covered by our workers’ compensation statute; disabilities gradually developing
over a period of time also subject employers to liability. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 373 (Iowa 1985). A cumulative injury results
from repetitive physical trauma in the workplace. Id. at 372–74. In other words,
a cumulative injury “develops over time from performing work-related activities
2 We will address the employer’s substantial evidence argument after discussing the commissioner’s application of the cumulative injury doctrine. 8
and ultimately produces some degree of industrial disability.” Ellingson v.
Fleetguard, Inc., 599 N.W.2d 440, 444 (Iowa 1999), overruled on other grounds
by Waldinger v. Mettler, 817 N.W.2d 1 (Iowa 2012). The “cumulative injury rule”
means an employee whose work activities collectively cause him to suffer a
debilitating condition may receive compensation when the employee becomes
aware of the injury. Excel Corp. v. Smithart, 654 N.W.2d 891, 896–97 (Iowa
2002).
West Des Moines Schools argues on appeal that the agency and the
district court both incorrectly applied the cumulative injury doctrine to the facts of
this case. The employer asserts the record contains “no evidence” Fry suffered a
cumulative injury to his left SI joint—the only condition that received a permanent
impairment rating. Rather, the employer contends Fry’s condition was the result
of a traumatic injury that occurred on January 15, 2007.
Fry responds in two ways. First, he echoes the analysis of the district
court, that reading the commissioner’s decision as a whole, it is apparent he
believed the October 2008 incident had a traumatic aspect to it. Second, Fry
argues the commissioner’s finding that the October 2008 injury is compensable
under the cumulative error doctrine is supported by the record. Fry reads the
case law as allowing a traumatic injury to “represent the manifestation of a
cumulative injury.” We find Fry’s second response to be persuasive; given the
broad interpretation our supreme court has given the cumulative injury doctrine.
In the prototypical cumulative injury case, years of continuous, repetitive
movement takes a physical toll on the worker’s body. See, e.g., Larson Mfg., 9
Co., Inc. v. Thorson, 763 N.W.2d 842, (Iowa 2009) (chronicling daily tasks of
worker at storm door factory). In such cases, a series of smaller hurts advance
toward manifestation as an employee requires medical treatment and
modification of work activities due to deterioration in function. Id. at 859.
But the acceptance of gradual injury as the mechanism of harm does not
exclude the idea that acute injuries can contribute to the employee’s
compensable disability under the cumulative injury doctrine. In the first Iowa
case to recognize cumulative injury as a viable theory of recovery under the
workers’ compensation code, our supreme court recognized two acute injuries to
the worker’s wrist as “the beginning of a series of hurts.” McKeever Custom
Cabinets, 379 N.W.2d at 373. Similarly, in Floyd v. Quaker Oats, 646 N.W.2d
105, 108 (Iowa 2002), the court rejected the employer’s argument that
cumulative injury was a “distinct and discrete disability solely attributable to work
activities over time, as opposed to an aggravation of a preexisting injury from an
identified traumatic event.” The court decided when an earlier traumatic injury
had not been compensated because the petition was dismissed in the face of a
statute of limitations defense by the employer, the claimant could recover by way
of a cumulative-injury claim for any functional disability shown to have occurred
as a result of day-to-day activities in the workplace subsequent to the traumatic
injury. Floyd, 646 N.W.2d at 108. The court recognized: “Full compensation is
allowed for the result of workplace activities aggravating a preexisting condition.”
Id. at 110. 10
Fry’s situation is similar to that in Floyd. The cumulative injury to his left SI
joint began with an acute injury in January 2007 and manifested in another acute
injury in September 2008. Between these bookends, Fry performed rigorous and
repetitive physical work activities as a school custodian. Both his treating
physician, Dr. Honsey, and Dr. Stoken discussed multiple aggravations
worsening the initial injury to Fry’s SI joint. Under the analysis in Floyd, Fry may
recover by way of a cumulative-injury claim for any functional disability resulting
from his day-to-day activities at the school, subsequent to his fall in January
2007. See id. at 108. Fry anticipated the possibility the commissioner would
view the September 2008 vacuuming incident as a cumulative injury in his
pleading. It is not unusual that the concepts of cumulative and acute injuries
would be intertwined in a work situation like Fry’s. See, e.g., Waters, 674
N.W.2d at 98–99 (upholding award to long-time hospital custodian on
cumulative-injury theory because employer was not prejudiced when employee’s
pleadings discussed specific dates implying acute injuries).
The case law does not support the employer’s position that the possible
existence of a compensable injury in January 2007 precluded application of the
cumulative-injury doctrine to subsequent work-related aggravations. West Des
Moines Schools has not shown the commissioner’s application of the cumulative
injury doctrine to Fry’s condition was irrational, illogical, or wholly unjustifiable.
C. Substantial Evidence
West Des Moines Schools contend the opinions of Dr. Honsey and Dr.
Stoken do not support the commissioner’s finding that Fry suffered a cumulative 11
injury to his left SI joint or a permanent aggravation of a preexisting SI joint
condition as a result of the October 6, 2008 vacuuming incident. The employer
acknowledges Dr. Honsey found a significant injury to Fry’s SI joint from the
January 2007 fall, which was aggravated by the October 2008 vacuuming work.
But the employer emphasizes Dr. Honsey did not opine the aggravation was
permanent nor did he provide an impairment rating. The employer further argues
Dr. Honsey never indicated Fry’s injury was cumulative as determined by the
commissioner.
As for Dr. Stoken, the employer quotes her significant findings:
“Impression: Status post work injury on 1/15/07 with a fall subsequent left hip, shoulder and back contusions and left sacroiliac joint dysfunction.” “Mr. Fry’s incident of 01/15/2007 and/or 10/6/2008 were a substantial causal or substantial aggravating factor in the development of medical conditions that I have diagnosed above.”[3] “The diagnoses identified [above] relates to the January 15, 2007 injury and the October 6, 2008 injury. There is a cumulative component to his condition to his left should and left him due to repetitive bending, twisting and lifting.”
The employer then parses her opinions very finely, contending she never stated
Fry suffered cumulative trauma to the SI joint, but rather found his hip and
shoulder complaints were cumulative in nature due to the repetitive bending,
twisting, and lifting nature of his work. The employer also contends Dr. Stoken’s
use of the phrase “and/or” leaves it unclear whether she found the October 2008
incident was a cause of Fry’s SI joint condition.
3 The employer left out the remainder of this finding: “These are injuries that cause a severe strain and sprain to the left shoulder, left hip, and low back with a left sacroiliac joint dysfunction. This trauma has resulted in chronic pain that he exhibits.” 12
We recognize, as did the district court, that this case features conflicting
expert opinions. Those expert opinions provide the foundation for determining
medical causation and present a question of fact vested in the commissioner’s
discretion. Dunlap v. Action Warehouse, 824 N.W.2d 545, 555 (Iowa Ct. App.
2012). We will disturb the commissioner’s causation finding only if it is not
supported by substantial evidence. See Iowa Code § 17A.19(10)(f). We view
the record as a whole. Id. As a reviewing court, our job is not to search for a
way to read the expert opinions to defeat the commissioner’s findings. See
Schutjer, 780 N.W.2d at 558 (noting “[b]ecause the commissioner is charged with
weighing the evidence, we liberally and broadly construe the findings to uphold
his decision”). The ability to draw differing conclusions from the record does not
equate with insubstantial evidence. See Coffey v. Mid Seven Transp. Co., 831
N.W.2d 81, 89 (Iowa 2013).
The commissioner’s reliance on the views of Dr. Honsey and Dr. Stoken
was reasonable and within his discretion. Their expert opinions provided
substantial evidence to support the commissioner’s conclusion that Fry suffered
a cumulative injury to his SI joint, starting from his fall in January 2007 and
manifesting itself on October 6, 2008.
Contrary to the employer’s argument, the commissioner does have
authority to pick and choose which aspects of an expert opinion deserve weight.
See Gifts Mfg. Co. v. Frank, __ N.W.2d __, 2014 WL 5286513, at *2 (Iowa 2014).
Findings of the commissioner are akin to a jury verdict, and we broadly apply
them to uphold the agency decision. Frye v. Smith-Doyle Contractors, 569 13
N.W.2d 154, 155 (Iowa Ct. App. 1997). Expert opinion testimony may be
accepted or rejected in whole or in part by the trier of fact. Id. at 156.
Dr. Honsey identified the SI joint as the “primary pain generator” since the
January 2007 incident and at the time of the litigation. Dr. Honsey further opined
the October 2008 event “significantly exacerbated his January 2007 injury and
was more significant than the lesser aggravations Mr. Fry experienced between
January 2007 and October 2008. . . .” Dr. Honsey concluded the chronic pain in
Fry’s SI joint has become “a permanent injury and results from his original fall on
January 15, 2007, and a number of activities cause exacerbations which
occurred since that time, including the vacuuming incident of October 15, 2008.”
Dr. Honsey’s references to multiple aggravations warranted the commissioner’s
finding that Fry’s SI joint injury was cumulative in nature. See McKeever Custom
Cabinets, 379 N.W.2d at 374 (finding worker “came by his disabled wrist from
numerous incidents over a period of time” including two traumatic injuries).
Dr. Stoken also found a cumulative component to Fry’s condition based on
the repetitive bending, twisting, and lifting he did as a school custodian. When
read in its entirety, Dr. Stoken’s evaluation recognized the incremental strains on
Fry’s shoulder, hip, and SI joint from his strenuous work duties. The
commissioner was entitled to find that Dr. Stoken’s view placed “in context both
the 2007 injury and the last significant exacerbation on October 6, 2008.”
As noted above, workers’ compensation benefits are available when
workplace activities aggravate a preexisting condition. Floyd, 646 N.W.2d at 110
(finding sufficient evidence to show cumulative injury to worker’s knee, which 14
occurred subsequent to initial work-related knee injury). The substantial
aggravating factors causing Fry’s permanent impairment were discussed by both
Dr. Honsey and Dr. Stoken. When we review the agency record as a whole, we
find their opinions offer ample support for the commissioner’s finding that Fry
should be compensated for a cumulative injury to his left SI joint. Fry’s injury
manifested during the October 2008 vacuuming incident, but resulted from
aggravations of his preexisting condition stemming from the January 2007 fall.
The commissioner was also entitled to rely on Dr. Stoken’s opinion
concerning the extent of Fry’s industrial disability. Industrial disability measures
an injured worker’s lost earning capacity. Swiss Colony, Inc. v. Deutmeyer, 789
N.W.2d 129, 137 (Iowa 2010) (reiterating multi-factored test for functional
disability, including worker’s age, qualifications, and ability to engage in similar
employment). Fry is now in his mid-fifties and has a high school education. His
professional life has been spent in physically demanding jobs. Dr. Stoken
believed Fry should have reasonable work restrictions to avoid repetitive
bending, twisting, and lifting items of more than thirty pounds. The commissioner
determined Fry had lost a significant amount of access to the labor market
should he lose his current custodian position. The commissioner placed Fry’s
loss of earning capacity at twenty-five percent. Substantial evidence supports
the commissioner’s decision.
D. Healing Period Benefits, Alternate Medical Care and Mileage
West Des Moines Schools contend Fry was not entitled to healing period
benefits under Iowa Code section 85.34 or temporary total disability benefits 15
under section 85.33. The employer alleges Fry did not miss work as a result of
the October 6, 2008 vacuuming incident. The employer also argues Fry is not
entitled to alternate medical care or mileage expenses because his ongoing
health complaints are not related to a workplace injury.
We reject the employer’s contentions. The record shows Fry missed work
due to his workplace injury on the dates stipulated to by his employer.
Accordingly, he is entitled to the healing period benefits identified in the
commissioner’s decision. Fry also is entitled to the reimbursement of medical
expenses and alternative medical care ordered by the commissioner under
section 85.27. We affirm the judicial review order in its entirety.
AFFIRMED.