2

IN THE COURT OF APPEALS OF IOWA

No. 4-484 / 03-1129

Filed October 27, 2004

LISA KRIEGEL,

Petitioner-Appellant,

vs.

DOORCRAFT OF IOWA and CRAWFORD & COMPANY,

Respondents-Appellees.

Appeal from the Iowa District Court for Poweshiek County, Richard J. Vogel, Judge.

Lisa Kriegel appeals from the district court’s ruling on judicial review affirming the workers’ compensation commissioner’s denial of workers’ compensation benefits. AFFIRMED.

Paul McAndrew Jr., Coralville, for appellant.

Brad Epperly of Nyemaster, Goode, Voigts, West, Hansell & O'Brien, P.C., West Des Moines, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.


MILLER, J.

Lisa Kriegel appeals from the district court’s ruling on judicial review affirming the workers’ compensation commissioner’s denial of workers’ compensation benefits. She contends the court erred in (1) concluding the agency action was not in excess of statutory authority and not affected by errors of law, and (2) in stating that the record when read as a whole does not contain substantial evidence to reverse the agency action. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

Lisa Kriegel sustained a permanent injury to her right shoulder on May 3, 1989 while working at Wal-Mart. The injury required medical and surgical treatment and she was eventually diagnosed with a “chronic posterior dislocation.” Based on this injury Kriegel filed a petition with the workers’ compensation commission for disability benefits. On February 5, 1992, a deputy workers’ compensation commissioner rendered a decision, based largely on Dr. Michael Durkee’s opinions. The deputy determined Kriegel had suffered a thirty percent industrial disability, a fifteen percent permanent impairment of her right upper extremity, and a nine percent permanent impairment to the body as a whole from this injury which arose out of and in the course of her employment at Wal-Mart. In addition, the deputy found that Kriegel had restrictions regarding her right shoulder which limited her to lifting no more than ten pounds and no lifting above mid-chest level. Kriegel was awarded one hundred fifty weeks of permanent partial disability benefits beginning May 15, 1990. Accordingly, her benefit period would have ended in approximately February 1993.

Kriegel began working at Doorcraft in April 1996. In the interim period between her work-related injury at Wal-Mart and when she began her employment at Doorcraft, Kriegel had worked as a cook and cashier at Casey’s and Kentucky Fried Chicken and as a cashier at a grocery store. Kriegel apparently worked at all of these jobs without adhering to the previously-imposed limitations. Prior to starting at Doorcraft, she was directed to have a pre-employment physical with the company doctor, Clayton Francis, M.D., on March 12, 1996. Dr. Francis is a family practice physician. He examined Kriegel briefly to check for range of motion and approved her to work for Doorcraft. Dr. Francis was aware that Kriegel had a prior problem with her right shoulder with chronic subluxation or dislocation and that she previously had surgery on the shoulder. He was not aware, however, that she had been given a permanent impairment rating or work restrictions due to her prior injury. He stated in his deposition that if he had known of the prior work restrictions he would have informed Doorcraft and continued them. After the pre-employment physical, Kriegel proceeded to work at Doorcraft for approximately twenty-three months without adhering to the previously-imposed limitations.

On February 25, 1998, Kriegel was pushing a ten-foot-high stack of cullboards down a roll case at Doorcraft. The stack came to an abrupt stop because one of the boards was out of alignment and hit a beam near the roll case. The incident caused Kriegel’s right arm to be “slammed” back over her head. She reported this injury to her supervisor who told her to simply give it some time to heal, but was not sent to the company doctor at that time. Kriegel later spoke to the assistant plant manager and a formal report was filed on March 12, 1998.

Kriegel went to see Dr. Francis, on March 13, 1998. He diagnosed Kriegel with chronic subluxation of the right shoulder and directed that she return to see her physician at the Steindler Clinic if approved by her employer. On March 20, 1998 Kriegel returned to Dr. Francis who assessed her condition as chronic subluxation with the possibility of neurovascular involvement. Dr. Francis recommended she see Dr. Mark Kirkland, D.O.

Dr. Kirkland treated Kriegel for her right shoulder injury from March 27, 1998, through September 16, 1998. Conservative treatment with physical therapy was provided. At the end of this treatment Dr. Kirkland believed that most likely Kriegel would need surgery, but the results could not be guaranteed. He also concluded at the end of his treatment of Kriegel that she had a full and normal range of motion in her right shoulder. Absent surgery Dr. Kirkland opined Kriegel was at maximum medical improvement. Based on the assumption she was at maximum medical improvement at that time, Dr. Kirkland rated Kriegel as having a twelve-percent impairment to her left upper extremity secondary to posterior and inferior subluxation/dislocation.[1] He also stated that if she was at maximum medical improvement Kriegel would need permanent restrictions of not lifting more than ten pounds and not doing any work at shoulder level or above.

On June 16, 1999 Kriegel went to see Dr. Jeffrey Davick, M.D. who rendered a diagnosis of multi-directional instability of the right shoulder and recommended surgery. On June 23, 1999 Kriegel terminated her employment with Doorcraft pursuant to company policy after she was absent from work for four consecutive days and failed to call in to give a reason why. Since that time she has been engaged in home daycare.

On December 14, 1999 Dr. Davick performed a right shoulder arthroscopy with capsular shift. On January 17, 2000 Dr. Davick imposed work restrictions on Kriegel of no lifting over ten pounds and no work above chest height. Kriegel reported to Dr. Davick on January 28 and February 16, 2000, that she had experienced “popping” in her right shoulder. Davick directed Kriegel to physical therapy for strength and stabilization. On April 3, 2000, Dr. Davick told Kriegel he believed she was at maximum medical improvement and gave her permanent work restrictions of not lifting over twenty-five pounds and only occasional work above chest height. He agreed with Dr. Kirkland’s earlier impairment rating of twelve percent for her right upper extremity due to her joint subluxation. In a letter dated November 6, 2000, Dr. Davick stated that the occupational injuries to Kriegel’s right shoulder were aggravations of her underlying condition of subluxation. He also opined that the shoulder subluxation from her injury at Doorcraft was a “temporary aggravation of a pre-existing underlying condition” but did require surgery. Finally, he stated there should be “no further rating attributable to this work related injury at Door Craft in 1998.”

Kriegel had an independent examination by Dr. Keith Riggins, M.D. on November 15, 2000. Dr. Riggins reviewed the medical records from Drs. Durkee, Kirkland, and Davick. Dr. Riggins diagnosed Kriegel as having recurrent subluxation/dislocation of the right shoulder and sensory disturbance on a non-anatomic basis. He rated Kriegel as having a thirteen percent upper extremity impairment due to impairment in function of the right shoulder and presence of dysesthesia in the upper extremity. Of the thirteen percent, Dr. Riggins concluded that ten percent was due to the dysesthesia and three percent to restriction of range of motion in abduction of the right shoulder. He concluded the thirteen percent impairment of the right upper extremity converted to an eight percent impairment of the whole person due to the impairment in function of the right shoulder and right upper extremity.

On February 15, 2000, Kriegel filed a petition with the workers’ compensation commissioner seeking benefits from Doorcraft for her February 25, 1998 right shoulder injury. A deputy workers’ compensation commissioner filed a written arbitration ruling on October 5, 2001 denying Kriegel benefits. The deputy found that prior to her February 25, 1998 injury Kriegel had sustained injuries to her right shoulder resulting in permanent impairment and work restrictions which were more severe than those imposed after the injury. He further determined that Kriegel’s condition of dysesthesia was not new, and “even if it were, it has not produced additional permanent disability beyond that which the claimant had already sustained as a result of her 1989 injury.” The deputy noted that Dr. Riggins had opined in his deposition that the dysesthesia was not caused by Kriegel’s repetitive work at Doorcraft, but that the injury at Doorcraft did aggravate her prior shoulder problems. Accordingly, the deputy concluded that the injury sustained by Kriegel on February 25, 1998, was merely a temporary exacerbation of her preexisting condition and she sustained no permanent disability as a result of the injury.

Kriegel appealed the arbitration decision. The interim workers’ compensation commissioner affirmed the arbitration decision on August 19, 2002, and with some additional analysis adopted as final agency action those portions of the decision appealed from. The commissioner concluded that Kriegel “failed to prove her work injury was a substantial factor in causing the alleged permanent disability.” Kriegel’s motion for rehearing before the commissioner was summarily denied on September 12, 2002. Kriegel filed a petition for judicial review with the district court contending the agency action was in excess of statutory authority, affected by errors of law, and unsupported by substantial evidence in the record before the agency. The district court denied Kriegel’s petition for judicial review in a ruling filed June 30, 2003, finding her claims to be without merit.

Kriegel appeals from the district court’s denial of her petition for judicial review of the agency action finding her work-related injury did not result in permanent disability. She contends the district court erred in concluding that the agency action was not in excess of statutory authority, was not affected by errors of law, and that there was substantial evidence in the record to support the agency’s findings when the record is viewed as a whole.

II. SCOPE AND STANDARDS OF REVIEW.

Our review of a final decision of the workers' compensation commissioner, like that of the district court, is for correction of errors of law. Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). In determining whether the district court erred in exercising its power of judicial review, we apply the standards of Iowa Code section 17A.19(10) (2001) to determine whether our conclusions are the same as those of the district court. Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004). If they are the same, we affirm. Id. Otherwise we reverse, modify, or grant other appropriate relief if substantial rights of the person seeking judicial relief have been prejudiced by agency error. Iowa Code § 17A.19(10). The agency's findings are akin to a jury verdict, and we broadly apply them to uphold the agency decision. Shank, 516 N.W.2d at 812.

We may reverse, modify, or remand to the commissioner for further proceedings if the agency's findings of fact are not supported by substantial evidence when the record is viewed as a whole or the agency’s action is affected by other error of law. Quaker Oates Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996). Evidence is substantial if reasonable minds would find it adequate to reach the same findings. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). The fact we could draw different conclusions from the same evidence does not mean the commissioner’s determinations are not supported by substantial evidence. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995). “The ultimate question is not whether the evidence supports a different finding, but whether it supports the findings the commissioner actually made.” Id.

III. MERITS.

A. Substantial Evidence.

Kriegel contends the district court erred in finding the agency’s determination that there was no permanent disability, but instead merely an aggravation of her preexisting condition, was supported by substantial evidence in the record. More specifically, she contends the agency disregarded all uncontroverted medical evidence in concluding her injury at Doorcraft was only a temporary aggravation of a preexisting condition and did not result in a permanent disability.

The commissioner is free to accept or reject, in whole or in part, expert testimony, even if uncontroverted. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). However, when the agency disregards uncontroverted expert medical testimony it must say why such testimony was disregarded. Sondag, 220 N.W.2d at 908; Hurley v. Sheller-Globe Corp., 512 N.W.2d 796, 798 (Iowa Ct. App. 1993).

It is clear from the record that the expert medical evidence regarding whether Kriegel sustained a permanent disability as a result of the injury at Doorcraft or merely a temporary exacerbation of her preexisting condition was in fact controverted. As set forth above, Dr. Davick clearly opined that Kriegel’s occupational injuries to her right shoulder

are aggravations of the underlying condition with a diagnosis of subluxation. The injury to her right shoulder . . . was an aggravation of an underlying condition to the point where it required treatment. This relates to her work related injury in March of 1998 at Door Craft of Iowa.