RICHARD J. BENTHIN , P etitioner - Appell ant , vs. ILLOWA INVESTMENTS, INC., and HIGHLANDS INSURANCE GROUP , Respondents - Appell ees .
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IN THE COURT OF APPEALS OF IOWA
No. 8-305 / 07-0370
Filed October 1, 2008
RICHARD J. BENTHIN,
Petitioner-Appellant,
vs.
ILLOWA INVESTMENTS, INC., and
HIGHLANDS INSURANCE GROUP,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
Workers‟ compensation claimant appeals from the judicial review ruling
affirming the denial of his petition to reopen/review a settlement agreement.
AFFIRMED.
Edward Cervantes of Cervantes & Gordon, P.L.C., Davenport, for
appellant.
Alexander Wonio of Hansen, McClintock & Riley, Des Moines, for
appellees.
Heard by Huitink, P.J., and Vogel and Eisenhauer, JJ.
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VOGEL, J.
Workers‟ compensation claimant Richard Benthin appeals from the judicial
review ruling affirming the denial of his petition to reopen/review a settlement
agreement with his former employer, Illowa Investments, Inc., and its insurance
carrier, Highlands Insurance Group. We affirm.
Background Facts and Proceedings.
On July 26, 1997, Benthin was working for Illowa doing asphalt work as a
seasonal laborer. While breaking asphalt with a pickax, he suffered a herniation
of the lumbar region. After extended treatment, he was released to return to
work in June 1998 by neurosurgeon Dr. Todd Ridenour, with restrictions of only
light duty work and no lifting greater than ten pounds. Illowa accommodated the
restrictions by giving Benthin work assignments of driving a pilot car and flagging,
duties he could perform within the restrictions.
In April 2001, the parties entered into, and the workers‟ compensation
commissioner approved, a settlement agreement stating Benthin was entitled to
permanent partial disability payments of twenty-four percent of the body as a
whole as a result of the 1997 work-related injury. At the time of the settlement,
Benthin was still working the light duty jobs to accommodate his restrictions.
In July 2001, Illowa added to Benthin‟s work duties a job that required him
to use a wand attached to an air compressor to clean cracks in the road. Benthin
testified that this job entailed holding the fifteen-to-twenty pound wand while
stooping over, but he was only doing this about half of the time, as he rotated
between driving a truck and using the wand. In August of 2001, Benthin began
experiencing increased pain and began taking narcotic pain medicine during
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working hours. On May 1, 2003, Benthin filed a review reopening proceeding
requesting additional industrial disability benefits.
Following a hearing, the
deputy workers‟ compensation commissioner denied the request and a second
deputy, pursuant to delegation, affirmed this on appeal. On judicial review, the
district court affirmed the agency‟s denial of Benthin‟s reopening request.
Benthin appeals from this ruling.
Scope of Review.
Our review is governed by Iowa‟s Administrative Procedure Act, Iowa
Code chapter 17A (2007).
Accordingly, we may grant relief from the
commissioner‟s decision if a party‟s substantial rights have been prejudiced and
the decision is “not supported by substantial evidence in the record before the
court when that record is viewed as a whole.” Iowa Code § 17A.19(10)(f); see
IBP, Inc. v. Harpole, 621 N.W.2d 410, 417 (Iowa 2001). In assessing the record,
we consider the record evidence that detracts from any challenged finding as
well as evidence that supports it.
Iowa Code § 17A.19(10)(f)(3). Moreover,
“where reasonable minds may differ on the inferences to be drawn from the
proven facts and circumstances, the findings of the commissioner in such
matters are conclusive.”
Bousfield v. Sisters of Mercy, 249 Iowa 64, 68, 86
N.W.2d 109, 112 (1957).
Review Reopening.
Under
Iowa
Code
section
86.14(2),
the
workers‟
compensation
commissioner has authority to “reopen an award or settlement of workers‟
compensation benefits to inquire „whether or not the condition of the employee
warrants an . . . increase of compensation so awarded or agreed upon.‟”
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Gallardo v. Firestone Tire & Rubber Co., 482 N.W.2d 393, 395 (Iowa 1992)
(quoting Iowa Code § 86.14(2)). When the employee files a review reopening
proceeding
to
increase
benefits,
the
employee
must
establish
by
a
preponderance of the evidence that “he or she has suffered an impairment or
lessening of earning capacity proximately caused by the original injury.”
Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999).
In addition,
the circumstances giving rise to a decrease in earning capacity
must not have been within the contemplation of the decision maker
at the time of the original award . . . . Thus, in a case such as this
where the employee claims his earning capacity has decreased as
the result of changes in his physical condition occurring after the
initial award of benefits, the commissioner must determine (1)
whether there has been a change in the worker‟s condition as a
result of the original injury, and (2) whether this change was
contemplated by the parties at the time of any settlement or
stipulation with respect to industrial disability or whether it was
beyond what the commissioner contemplated at the time of the
original assessment of industrial disability.
Acuity Ins. v. Foreman, 684 N.W.2d 212, 217 (Iowa 2004).
On appeal, Benthin first maintains the agency erred in concluding that,
under U.S. West v. Overholser, 566 N.W.2d 873, 876 (Iowa 1997), the failure to
accommodate an injured worker resulting in the loss of a job does not constitute
a change of condition warranting review reopening. As the Overholser court
noted, when a settlement is reached, the injured‟s loss of earning capacity is
properly viewed “in terms of the injured worker‟s present ability to earn in the
competitive job market without regard to the accommodation furnished by one‟s
present employer.” Overholser, 566 N.W.2d at 876 (citing Thilges v. Snap-On
Tools Corp., 528 N.W.2d 614, 617 (Iowa 1995)).
Accordingly, the disability
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award must not be adjusted downward because the worker is receiving sheltered
employment or merely because the employer modifies its job requirements in
light of an employee‟s disability. Overholser, 566 N.W.2d at 876. Here, the
agency merely cited Overholser in support of its overall conclusion that Benthin‟s
condition did not change or worsen to an unanticipated extent following the
settlement. Read in this context, there was no reversible error.
Benthin next claims substantial evidence does not support the agency
finding that his increased need for medication during work hours was not a
worsened condition unanticipated at the time of the settlement. After the initial
1997 injury Benthin was prescribed a variety of medications, including narcotic
painkillers. Benthin‟s personal physician, Dr. Peter Laureijs, repeatedly advised
Benthin not to work while taking the narcotic medications. Benthin testified that
he followed this directive, taking only anti-inflammatory medication during the
day, reserving the narcotic medication for after-work hours. However, during the
mid to late 2001 construction season, he claimed that due to the increased pain
from using the air wand he started taking narcotics at work.
When Illowa
discovered he was taking narcotic painkillers while working, due to safety
concerns, it requested that he receive a release for using such medication from
his physician. Unable to receive such authorization, Illowa did not recall Benthin
to work again for the 2002 season.
The agency found that Benthin‟s use of narcotic medication during
working hours caused Illowa management not to allow Benthin to return to work
during the 2002 construction season. It further found that Dr. Laueijs‟s long-held
view and repeated advice to Benthin that he not use narcotics while working, was
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a pre-settlement condition and therefore could not have constituted an
unanticipated change. We conclude substantial evidence supports this finding.
The doctor‟s recommendations were well documented in the record and
acknowledged by Benthin.
Accordingly, the drug use and consequential
termination from employment was not an unanticipated condition at the time of
the settlement.
Finally, Benthin asserts no substantial evidence supports the agency‟s
decision that he did not suffer any additional industrial disability. The agency did
award Benthin temporary total disability benefits from April 15, 2002 through
September 16, 2002, after finding Illowa failed to accommodate Benthin‟s light
duty restrictions, which in turn lead to Benthin‟s increased pain and use of
narcotic medicines. However, the agency also found that by September 2002,
Benthin had returned to his pre-August 2001 physical condition. The agency,
discounting the contrary opinion of Dr. Robert Milas, cited the opinions of three
physicians, Drs. Miller, Elkin, and Deigman, who all opined that Benthin‟s
physical condition had not worsened since the settlement. At the time of the
settlement, it was clear that Benthin would continue to suffer future symptoms,
that future treatment was likely, and that surgical intervention was possible. In
addition, the functional capacity examinations from 1998 and 2002, although not
to the exact same degree, both contain the similar essential restrictions on work
activities. This constitutes substantial evidence supporting the agency‟s findings.
Conclusion.
Accordingly, we concur with the district court that the agency‟s decision
was based on substantial evidence, including Benthin‟s medical records and the
7
opinions of the doctors therein, that his economic situation remained the same as
it was at the time of the settlement. As the agency determined, there was no
substantial or unanticipated changes in Benthin‟s status since the settlement
date. We therefore affirm.
AFFIRMED.
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