Opinion
No. 3-534 / 02-1685
Filed February 27, 2004
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
An employer appeals from a district court judicial review decision affirming an agency decision awarding workers' compensation benefits. AFFIRMED.
David L. Jenkins of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellant.
Matthew B. Moore of Heslinga, Heslinga, Dixon Moore, Oskaloosa, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, J.J.
Pella Corporation appeals from the district court ruling that upheld an award of workers' compensation benefits to employee Ann Merrill. We affirm.
Background Facts and Proceedings.
Since 1989 Ann Merrill has been employed by Pella Corporation (Pella), in positions that required repetitive shoulder movement. In November 1998 Merrill started to have numbness in her left hand and to feel pain in her neck and left shoulder. She reported her symptoms to Pella on November 10, 1998, and sought treatment on November 20, 1998. Merrill continued to have symptoms, and was seen by Dr. Lloyd Thurston, and his staff, beginning March 29, 1999. A brief course of physical therapy did not relive her symptoms and Merrill began to miss work, due to shoulder pain, sometime during the week of April 12 through 16, 1999. On April 30, 1999 Dr. Thurston concluded Merrill's symptoms were not work related. He opined Merrill suffered from undifferentiated somatoform disease. Based on Dr. Thurston's recommendation, workers' compensation coverage was terminated.
Merrill returned to her family physician, Dr. Jon Kanis, who referred her to orthopedic surgeon Dr. Kyle Galles. Dr. Galles concluded Merrill's symptoms were typical of thoracic outlet syndrome, and referred her to thoracic surgeon Dr. Alan Koslow. After performing a neurological exam, Dr. Koslow diagnosed Merrill with thoracic outlet syndrome, and performed a surgical treatment for the condition in July 1999. Merrill returned to work in October 1999, but again experienced symptoms. She received a brief course of physical therapy, and was released to return to work, without restrictions, in November 1999.
Merrill was able to work for several months, but suffered another onset of symptoms in April 2000. Merrill did not recover from this onset and Dr. Koslow performed another surgery aimed at treating her thoracic outlet syndrome. Merrill returned to work full-time in August 2000, but once again began to experience symptoms. She sought treatment in October 2000, and was referred to Dr. Donna Bahls. Dr. Bahls provided conservative treatment with medication, and imposed temporary work restrictions. Merrill continued to be employed at Pella in a full-time position consistent with her work restrictions. It was, however, a job designated for employees recovering from an injury, rather than a regularly-available position. Merrill continued to experience pain, and her work restrictions remained in place.
Merrill filed a workers' compensation petition in October 1999. It alleged a cumulative repetitive motion injury — thoracic outlet syndrome — with an onset date of November 11, 1998. In his arbitration decision the deputy workers' compensation commissioner determined Merrill had suffered a work-related, cumulative injury of thoracic outlet syndrome. He set the date of injury as April 16, 1999, the "first day of disability clearly shown by the record. . . ." Acknowledging that Merrill's subjective complaints were "not reliable," the deputy nevertheless concluded Merrill would have residual permanent disability due to her lack of a full recovery and the length of time temporary restrictions had been in place. The deputy found a twenty-five percent industrial disability, and awarded Merrill permanent partial disability benefits.
Upon Pella's motion for rehearing, the deputy clarified his earlier ruling. He specifically found that Merrill had lost the ability to perform repetitive work in the general labor market, based on her history of becoming symptomatic, obtaining treatment, resuming repetitive work and then again becoming symptomatic. The deputy further found that, given Merrill's lack of progress under Dr. Bahls's treatment, it was unlikely that she would ever completely recover from her injury.
On intra-agency appeal, Pella challenged the finding of an injury date not alleged by Merrill. Pella's argument encompassed not only the deputy's authority to make such a finding, but also raised issues of lack of notice and prejudice. Pella also challenged the findings of a work-related injury and a twenty-five percent industrial disability. The agency concluded Pella was not prejudiced by the finding of an injury date different from that alleged by Merrill, and affirmed and adopted the arbitration decision. Upon judicial review, the district court affirmed the agency's decision. Pella appeals.
Scope and Standard of Review.
Our review is for the correction of errors at law. Aluminum Co. of America v. Musal, 622 N.W.2d 476, 478 (Iowa 2001). To prevail Pell must demonstrate the invalidity of the agency's action and resulting prejudice. Iowa Code § 17A.19(8)(a) (2001). The agency decision will be upheld if it is unaffected by legal or other error, and is supported by substantial evidence in the record when the record is viewed as a whole. Id. § 17A.19(10). Substantial evidence is that sufficient to allow a reasonable, neutral, and detached person to reach the same conclusion as the agency. Id. § 17A.19(10)(f).
Date of Injury.
Pella claims that by selecting a date of injury other than the one alleged in Merrill's petition, the agency violated Pella's due process right to sufficient notice, as well as legislative and administrative provisions that require notice of matters asserted by the claimant. See Iowa Code § 17A.12(2)(d) (requiring short and plain statement of matters asserted); Musal, 622 N.W.2d at 479 (stating that due process requires notice of issues to be addressed to provide opposing party an opportunity to adequately defend). Matters to be asserted include the date of any alleged injury. See Iowa Admin. Code r. 876-4.6 (1999) (requiring claimant to allege each separate date of injury). In assessing this issue it is important to note that Merrill's claim is one of cumulative, rather than traumatic injury. The date of a cumulative injury is fixed when the disability manifests itself, or "the date on which both the fact of the injury and the causal relationship of the injury to the claimant's employment would have become plainly apparent to a reasonable person." Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992).
Although Merrill contends Pella did not preserve error on its due process claim, our review of the record indicates the claim was adequately raised on both intra-agency appeal and judicial review. See Tussing v. George A. Hormel Co., 417 N.W.2d 457, 458 (Iowa 1988).
Our supreme court has noted that fixing the date of a cumulative injury is an "inherently fact-based determination," for which the agency is entitled to a "substantial amount of latitude." Id. It has also held that a disability is apparent when it prevents the employee from working. Excel Corp. v. Smithart, 654 N.W.2d 891, 896 (Iowa 2002). The injury date fixed by the agency coincides with the week when Merrill first began to miss work due to shoulder pain. Assuming arguendo that Merrill established this pain was caused by a compensable cumulative injury, the agency's selected date is supported by substantial evidence. That does not answer the question, however, of whether Pella was prejudiced by the agency's selection.
Pella argues the latitude noted in Tasler exists only if the agency is required to choose between several specifically pled dates of injury. It contends that in a case such as this, where the employee pleads only one injury date, the agency is limited to determining whether a cumulative injury occurred on the date alleged — it has no discretion to set any separate injury date. We do not read Tasler so narrowly. In that case, the agency was presented with multiple petitions, each alleging a different date of traumatic injury. Tasler, 483 N.W.2d at 827. The agency found that, even though the employee failed to prove a compensable injury on any of the dates alleged in her petitions, she nevertheless sustained a cumulative injury that manifested on the date the employer's business closed. Id. at 827-28. There, as here, the agency selected an injury date other than that alleged by the employee. We do not find the multiple dates alleged in Tasler, as opposed to the single date alleged in this matter, to be a determinative distinction.
In order to satisfy due process, Pella must have been provided sufficient notice of Merrill's claim, such that it was able to adequately defend against it. Musal, 622 N.W.2d at 479. This is measured, not by some technical standard, but by fundamental fairness. Wedergren v. Board of Directors, 307 N.W.2d 12, 16 (Iowa 1981). In other words, to prevail on its due process claim, Pella must demonstrate it was prejudiced by a lack of sufficient notice. Pella is similarly required to establish that prejudice resulted from any noncompliance with legislative and administrative notice requirements. See Iowa Code § 17A.19(8)(a). Based upon our review of the record, Pella has failed in this task.
Pella was fully aware that Merrill was claiming a cumulative, repetitive stress injury, specifically thoracic outlet syndrome. Pella was also put on notice by one of Merrill's interrogatory answers, some two years prior to the arbitration hearing, that Merrill's date of injury could be other than November 11, 1998. In response to Pella's interrogatory request for time, date and place of injury, Merrill answered, "My injury did not occur at any specific time, but the date I first required medical attention was November 20, 1998." Moreover, while Pella claims it defended solely on the theory that Merrill could not establish a cumulative injury as of November 11, 1998, the record indicates Pella fully explored Merrill's medical and work history up to and beyond April 16, 1999.
Pella's inability to demonstrate a prejudicial lack of notice requires us to conclude that no due process violation occurred. This same lack of prejudice defeats Pella's claims based on alleged lack of compliance with the notice requirements of the Iowa Code and Iowa Administrative Code. We therefore turn to the question of whether substantial evidence supports the agency's conclusion that Merrill suffered from thoracic outlet syndrome, which arose out of and in the course of her employment with Pella.
Existence of Work-Related Injury.
Merrill bore the burden of proving, by a preponderance of the evidence, that her cumulative injury arose out of ( i.e., was caused by) and in the course of her employment at Pella. Iowa Code § 85.3(1); 2800 Corp. v. Fernandez, 528 N.W.2d 124, 128 (Iowa 1995). Although causation is primarily established through expert medical evidence, we must take due note of Merrill's own testimony. See Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996) ("Lay witness testimony is both relevant and material upon the cause and extent of injury."); Dunlavey v. Economy Fire Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995) (noting medical causation is essentially within the domain of expert testimony). After assessing the entirety of the record, we conclude substantial evidence supports the agency's conclusion that Merrill met her burden to demonstrate a work-related injury.
The medical evidence before the agency was conflicting. Dr. Koslow, a thoracic surgeon, diagnosed Merrill with thoracic outlet syndrome, and causally tied the syndrome to Merrill's repetitive work tasks. Dr. Thurston, an occupational medicine specialist who admittedly had little experience with thoracic outlet syndrome, opined Merrill did not suffer from the syndrome and that her surgeries were unnecessary. The agency determined the opinion of Dr. Koslow, supported by the examination of Dr. Galles, was entitled to more weight than Dr. Thurston's opinion. The agency noted that Drs. Galles and Koslow were "specialists with far more experience in the condition of thoracic outlet syndrome" than Dr. Thurston, "a general practitioner."
The agency was free to accept the assessments, diagnosis and opinions of Drs. Galles and Koslow over those of Dr. Thurston. See Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998). The agency, as the fact finder, determines the weight to afford this evidence, given the accuracy of the facts relied upon by the physicians and other surrounding circumstances. Id. It is not our role on appeal to reassess the weight given to the various medical opinions. Christensen v. Snap-On Tools Corp., 602 N.W.2d 199, 201 (Iowa Ct.App. 1999). In addition, despite its concerns about the reliability of Merrill's subjective complaints, the agency appears to have found at least portions of Merrill's own testimony sufficiently credible to help establish a causal link between her diagnosed condition, her work restrictions, and her previous work tasks.
Giving due deference to the agency's assessments, and reviewing the entirety of the record, we conclude it does contain substantial evidence from which a reasonable mind could find that Merrill suffered from thoracic outlet syndrome that arose out of and in the course of her employment with Pella. See Koehler Elec. v. Wills, 608 N.W.2d 1, 3 (Iowa 2000). We therefore turn to the last question presented in this appeal — whether substantial evidence supported the agency's finding of a twenty-five percent industrial disability.
Industrial Disability.
An industrial disability award is intended to measure "`the extent to which the injury reduced [the claimant's] earning capacity.'" Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 616 (Iowa 1995) (citation omitted). It requires a consideration of all factors that impact employability, not merely functional disability. Id.; Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 813 (Iowa 1994). This includes the employee's age, education, qualifications, experience, and ability to engage in employment for which she is fitted. Id. However, the court is not to consider evidence of an accommodation furnished by the employer, or the employee's working future. Thilges, 528 N.W.2d at 617.
Turning to the record in this case, we note Merrill has a high school education, and her work experience is largely limited to the type of repetitive motion job she had performed at Pella. Although Merrill never received an impairment rating, evidence was presented, both through expert opinion and Merrill's own testimony, that each attempt to return to a repetitive motion job led to another onset of symptoms for which she received treatment, and that for several months up to and including the time of the arbitration hearing, she had been unable to perform a repetitive motion job. Evidence was also presented that the job Merrill currently performs is not one "regularly" available at Pella, or one for which Pella would hire a full-time employee. Rather, it is one that the company has "created" for recovering workers.
While Pella complains the agency's industrial disability rating is fueled by Merrill's questionable subjective complaints, the agency's decision was made after acknowledging that Merrill's subjective symptoms were "not reliable." The agency also recognized the temporary nature of Merrill's current restrictions. We agree with Merrill that these very weaknesses in her case were considered by the agency in setting a disability rating of twenty-five percent.
Conclusion.
Given all the foregoing, substantial evidence supports the agency's finding that Merrill has lost the ability to perform repetitive work, and suffered a twenty-five percent industrial disability. Because we conclude Pella did not suffer prejudice from the agency's selection of an injury date, and that substantial evidence supports its findings that Merrill suffered a work-related injury resulting in twenty-five percent industrial disability, the entirety of the agency decision must be and is affirmed.