WILLIAM FLEMING, Petitioner-Appellant, vs. STIVERS DOWNTOWN LINCOLN-MERCURY AND FARM BUREAU INSURANCE, Respondents-Appellees
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IN THE COURT OF APPEALS OF IOWA
No. 6-908 / 05-1963
Filed December 28, 2006
WILLIAM FLEMING,
Petitioner-Appellant,
vs.
STIVERS DOWNTOWN LINCOLN-MERCURY
AND FARM BUREAU INSURANCE,
Respondents-Appellees
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
A worker compensation claimant appeals from the district court’s judicial
review of the agency decision regarding his claim. AFFIRMED.
Channing L. Dutton of Lawyer, Lawyer, Dutton & Drake, L.L.P., West Des
Moines, for appellant.
William D. Scherle and Alexander E. Wonio of Hansen, McClintock &
Riley, Des Moines, for appellee.
Heard by Huitink, P.J., and Zimmer, J., and Nelson, S.J.*
Decided by Huitink, P.J., and Vogel, J., and Zimmer, J., and Nelson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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PER CURIAM
William Fleming appeals from the district court’s decision on judicial
review of the Iowa Workers’ Compensation Commissioner’s (Commissioner)
decision to deny him benefits. We agree with the district court that a finding of an
aggravation injury is not supported by substantial evidence, but that the
Commissioner’s ultimate conclusion that Fleming failed to prove a permanent
disability arising from a work-related injury is supported by the record. We affirm.
I. Background Facts and Proceedings.
At the time of the hearing before the commission, Fleming was fifty-nine
years old and had worked as an auto mechanic for Stivers Lincoln-Mercury since
1985. He had smoked two packs of cigarettes a day since he was age 18, but
quit smoking in 1991.
During the winter of 1999 and early 2000, Fleming experienced symptoms
including chest tightness, shortness of breath, and watering eyes. His family
doctor, Gregory Ingle, D.O., initially suspected a heart attack or gastrointestinal
acid reflux disease, but testing eliminated both. Fleming’s symptoms abated until
October 2000, when he was referred to a pulmonologist, Katrina Guest, M.D. In
January 2001, Dr. Guest performed pulmonary function tests that showed a mild
air flow obstruction. She initially believed Fleming suffered from “irritable airways
probably sensitized to isocyanates or other components of the exposures at
work.” 1
A methacholine challenge test performed at this time was normal,
however. Following his return to work and the induction of another episode,
1
It was later determined that none of the chemicals to which Fleming may have been
exposed at Stivers contained isocyanides.
3
additional pulmonary function tests performed by Dr. Guest had the same results
as when Fleming was not experiencing symptoms. Fleming notified Stivers in
January 2001 as to Dr. Guest’s opinion.
Fleming continued to work in the service department at Stivers, although a
respirator was provided to him to minimize exposure to any chemicals. The
respirator irritated Fleming’s eyes and face, however, and an allergist treating
him took Fleming off of work on March 7, 2001. He remained off work until June
2002 and received temporary total disability benefits from Stivers during that
period. In January 2002, Stivers sent Fleming to a pulmonology clinic in Denver,
Colorado where he was seen by Ronald Balkisson, M.D.
Dr. Balkisson
conducted several tests, including blindfolded inhalation challenges to a number
of chemicals Fleming identified as used by him at Stivers. The test results were
essentially normal, with the exception of a mild vocal chord dysfunction, and
another methacholine test showed normal airway response.
Dr. Balkisson
believed that Fleming suffered from chronic bronchitis more probable than not
caused by a history of cigarette smoking and workplace chemical exposure,
stating “It is my impression that Mr. Fleming certainly has some irritant related
sensitivity to the various chemicals that are used in his workplace, but it does not
seem likely there is a true type I hypersensitivity or allergic response.”
He
attributed the vocal chord dysfunction to chemical exposure, acid reflux, and
postnasal drip from rhinitis. He recommended Fleming be retrained or relocated
to an area with minimal exposure to irritating chemicals.
Fleming returned to work at Stivers in June 2002, with another respirator
provided to him to reduce his exposure to the chemical irritants. The respirator
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proved difficult to wear due to its size, weight, and the positions in which Fleming
needed to be in to accomplish his work duties as an auto mechanic. Fleming’s
family physician, Dr. Ingle, advised him to discontinue using the respirator
because of the impact on his neck and spine.
Fleming permanently left
employment with Stivers on June 25, 2002, and filed a worker compensation
claim the following March 2003.
In preparation for hearing, another
pulmonologist and colleague of Dr. Guest, Dr. Gregory Hicklin, reviewed
Fleming’s records but did not physically examine him. Dr. Hicklin believed that
Fleming’s history of smoking and acid reflux disease contributed to his
respiratory complaints and that Fleming suffered no permanent injury from
chemical exposure at Stivers. Dr. Guest later indicated her agreement with Dr.
Hicklin’s conclusions, through correspondence and her sworn deposition in May
2004. She stated that Fleming suffered solely from an irritation that temporarily
produces a response, but that he does not have a cumulative, compounded, or
acute permanent injury consistent with sensitization that increase in response
with each additional exposure. Dr. Guest also believed that Fleming’s responses
to smelling certain chemicals he associated with his symptoms were emotional or
psychological responses consistent with his history of panic disorder, and again,
not from any physiological changes in his lung function. The record does not
reflect that Fleming was ever assigned a level of loss of function or disability, just
that he was to avoid exposure to the chemical irritants.
It was stipulated by the parties that at the time of his alleged injury,
Fleming was grossing $658.00 per week, or a weekly net pay of $412.32. They
also stipulated that Fleming received sixty-seven weeks of temporary total
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disability benefits at the weekly rate of $412.32 from Stivers.
Following a
contested hearing, the deputy commissioner found that the medical evidence
showed Fleming’s mild obstructive lung disease was more consistent with his
chronic bronchitis and history of smoking. He also found more persuasive the
medical testimony that Fleming’s reactions were merely irritative or emotional
responses, and not a cumulative sensitization that caused increased damage or
loss of pulmonary function.
Therefore, Fleming failed to establish that he
sustained a work-related permanent injury and was denied compensation for
total permanent disability benefits. On intra-agency appeal, the Commissioner
affirmed and adopted the arbitration decision’s findings of fact and conclusions of
law with a few modifications: (1) Fleming’s irritation was an aggravation of a
preexisting condition and therefore a compensable work injury regardless of the
cause of the preexisting condition; but (2) Fleming still failed to show the
aggravation injury caused any permanent disability, because
Claimant argues that since this injury, he can never return to his
chosen occupation, auto mechanic work, and therefor, he is entitled
to permanent disability benefits. This is correct only if the claimant
shows that his permanent restrictions are due to the injury and not
the preexisting condition. Claimant argues in his brief that if he
suffers a shoulder injury and is removed from a job requiring lifting
70 pounds because that type of lifting will increase his symptoms,
he should be entitled to compensation for the loss of his job. He is
correct if that injury, not a preexisting condition, caused the need to
avoid lifting. If the shoulder condition was caused by a non-work
related source, the loss of the job is not the result of the injury and
is not compensated as a consequence of the injury.
The fume irritations were not shown by the experts to have been
caused by an allergy acquired at work or that the risk of future
irritations was increased by these irritations. The loss of claimant’s
occupation is the result of his preexisting condition. He is no more
impaired or disabled now than he was before the injury occurred.
The only difference is that he now knows that his preexisting
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condition makes that type of work unsuitable for him. In view of his
preexisting condition it never was suitable for him. The injury led to
the discovery of the unsuitability but the injury did not cause the
unsuitability.
Fleming then petitioned the district court for judicial review of the agency
decision, arguing the Commissioner erred in failing to find permanent disability.
Stivers argued on judicial review that the Commissioner erred in finding Fleming
was injured. The district court reversed the Commissioner’s finding that Fleming
suffered an injury because of the lack of substantial evidence, but affirmed the
finding that Fleming sustained no functional impairment for a permanent
disability. Fleming now appeals from the decision on judicial review, contending
the Commissioner’s determination of an injury was supported by substantial
evidence and because there was an injury with loss of earning capacity, benefits
are due.
II. Scope and Standards of Review.
Our review of an industrial commissioner's decision is for correction of
errors at law. Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa
1999). In exercising its judicial review power of a final agency decision, the
district court acts in an appellate capacity to correct any errors of law by the
agency. Iowa Ag Const. Co., Inc. v. Iowa State Bd. of Tax Review, 723 N.W.2d
167, 172 (Iowa 2006). When we review the district court’s decision, “we apply
the standards of chapter 17A to determine whether the conclusions we reach 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; otherwise we reverse.”
Id.
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The Iowa Administrative Procedure Act, Iowa Code chapter 17A, governs
the scope of our review in workers’ compensation cases. Iowa Code § 86.26
(2003); Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006). Under the Act, we
may only interfere with the commissioner’s decision if it is erroneous under one
of the grounds enumerated in the statute and a party’s substantial rights have
been prejudiced. Iowa Code § 17A.19(10).
A court on judicial review is bound by the agency’s fact-finding if it is
supported by substantial evidence.
Evidence is substantial for purposes of
reviewing the decision of an administrative agency when a reasonable person
could accept it as adequate to reach the same finding.
Asmus v. Waterloo
Community School Dist., 722 N.W.2d 653, 657 (Iowa 2006). The fact that two
inconsistent conclusions may be drawn from the same evidence does not
prevent the agency’s findings from being supported by substantial evidence. Id.
In situations in which the workers’ compensation commissioner has rendered a
finding that the claimant’s evidence is insufficient to support the claim under
applicable law, that negative finding may only be overturned if the contrary
appears as a matter of law. Id.
III. Issue on Appeal.
Fleming argues on appeal that the district court erred on judicial review
when it found substantial evidence did not support the Commissioner’s decision
and reversed the finding of injury. He also contends that if a finding of injury is
properly supported, his evidence of loss of earning capacity amounts to an
industrial disability and entitlement to benefits. The Commissioner found that
Fleming’s pulmonary irritation consisted of an aggravation of his preexisting
8
condition and therefore a compensable injury, regardless of the cause of the
preexisting condition.
Workers’ compensation covers “[A]ll personal injuries
sustained by an employee arising out of and in the course of the employment . . .
.” Iowa Code § 85.3.
A personal injury, contemplated by the Iowa Workmen’s
Compensation Law, obviously means an injury to the body, the
impairment of health, or a disease, not excluded by the act, which
comes about, not through the natural building up and tearing down
of the human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to the
human body here contemplated must be something, whether an
accident or not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or otherwise
damages or injures a part or all of the body. . . . Of course, such
personal injury must be the result of the employment ‘and flow from
it as the inducing proximate cause.’
Black v. Creston Auto Co., 281 N.W. 189, 192-193 (Iowa 1938) (citations
omitted). It is also a well-established principle that if a claimant had a preexisting
condition or disability, aggravated, accelerated, worsened or “lighted up” by an
injury which arose out of and in the course of employment resulting in a disability
found to exist, he would be accordingly entitled to compensation.
Dep’t of
Transp. v. Van Cannon, 459 N.W.2d 900, 904 (Iowa Ct. App. 1990). Determining
whether an injury or disease has a direct causal connection with the employment,
or arose independently thereof, is essentially within the domain of expert
testimony, and the weight to be given such an opinion is for the finder of the
facts. Id.
The medical testimony presented before the agency was conclusive that
Fleming suffers from a mild pulmonary obstruction. Doctors Guest and Hicklin
believed the obstruction and Fleming’s chronic bronchitis to have emanated from
9
his long history of smoking cigarettes, and not to his chemical exposure that they
believed caused only an irritation and temporary reaction. Dr. Balkisson believed
that Fleming suffered from chronic bronchitis more probable than not caused by
a history of cigarette smoking and workplace chemical exposure.
The
Commissioner’s decision accepted that Fleming suffered only from an irritation of
his respiratory tract from chemical exposure at Stivers, but that the irritation was
also “due to [Fleming’s] preexisting condition.” In other words, the preexisting
condition leaves Fleming more susceptible to irritation by chemical exposure.
The finding of an irritation, versus a permanent and cumulative chemical
sensitization, is supported by the medical evidence and substantial evidence on
the record. Whether the irritation is an aggravation of a pre-existing injury for
purposes of the statute, however, is less clear. The Commissioner’s finding of an
irritation, as opposed to a sensitization, necessarily precludes the finding of an
“injury” as the medical testimony does not support that a temporary irritation
reaction “impairs the health, overcomes, injures, interrupts, or destroys some
function of the body, or otherwise damages or injures a part or all of the body.”
To the extent that the Commissioner found the temporary irritation reaction to be
an injury that damages or destroys some function of the body, we conclude the
record insubstantial to support such a finding. There is no medical testimony in
the record that an irritation reaction causes damage to the body, but rather only a
temporary, symptomatic response that resolves without permanent change to the
body. Therefore, we agree with the district court that the Commissioner’s finding
that Fleming’s temporary irritation reaction constitutes an aggravation injury is not
supported by the record.
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Regardless of whether the irritation suffered by Fleming was an injury, the
Commissioner also determined that he failed to prove a permanent disability
arising from his employment and not the preexisting condition. He found that the
medical evidence did not support the fume irritations were caused by an allergy
acquired at Stivers or that any increased risk of future irritation existed from the
previous exposure.
This is a somewhat inconsistent result with the
Commissioner’s earlier finding of an aggravation injury, but the ultimate
conclusion is supported by the record.
The Commissioner found that while
Fleming’s preexisting condition may leave him more susceptible to chemical
irritation, it is the preexisting condition that actually makes the work unsuitable
and prevents him from working as an auto mechanic. The medical evidence
supports this conclusion, as presented by Doctors Guest and Hicklin who
believed Fleming’s mild pulmonary obstruction was a preexisting condition as the
result of his history of smoking. We agree with the Commissioner’s denial of
benefits upon the conclusion that Fleming failed to prove permanent disability as
a result of a work-related injury.
Our conclusions are thus the same as the district court; that the
Commissioner’s finding that Fleming suffered an injury is not supported by
substantial evidence but the ultimate denial of benefits for failure to prove
Fleming has suffered permanent disability from a work-related injury is supported
by the evidence. In agreement with the district court, we affirm its decision on
judicial review and the agency’s denial of benefits.
AFFIRMED.
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