STACEY SANDBERG , P etitioner - Appell ant , vs. RUBBERMAID HOME PRODUCTS , Respondent - Appell ee .
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IN THE COURT OF APPEALS OF IOWA
No. 8-626 / 08-0191
Filed December 17, 2008
STACEY SANDBERG,
Petitioner-Appellant,
vs.
RUBBERMAID HOME PRODUCTS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,
Judge.
Employee appeals from a ruling on petition for judicial review reversing the
workers’ compensation commissioner’s award of industrial disability benefits.
AFFIRMED.
Randall P. Schueller of Hopkins & Huebner, P.C., Des Moines, for
appellant.
Stephanie L. Marett and Coreen K. Sweeney of Nyemaster, Goode, West,
Hansell & O’Brien, P.C., Des Moines, for appellee.
Heard by Vogel, P.J., Miller, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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ZIMMER, S.J.
The question on appeal is whether chronic pain alone can serve as the
basis for converting what would otherwise be a scheduled member injury to a
body–as–a–whole injury. The workers’ compensation commissioner adopted a
deputy commissioner’s decision that answered the question in the affirmative.
On the employer’s petition for judicial review, the district court reversed. Stacy
Sandberg now appeals.
I. Background Facts and Proceedings.
Stacy Sandberg graduated from high school and then obtained a degree
in interior design from Patricia Stevens Career and Finishing School. She also
attended Indian Hills Community College and is six credit hours short of an
associate of arts degree. She has worked as a cashier, shelf stocker, customer
service worker, and pharmacy assistant.
Sandberg began working for Rubbermaid Home Products in March 1998,
left in June 1998, and then returned in December 1998. While in Rubbermaid’s
employ, Sandberg worked in production, as a utility worker, and as a fill-in
supervisor.
On December 9, 2000, Sandberg suffered a work-related injury
when she stepped down from a machine, rolled her right ankle, and felt a pop or
snap in her foot.
Sandberg continued to have problems with her right extremity—including
chronic pain—since the date of the injury and an April 2001 tarsal tunnel surgery.
Sandberg left Rubbermaid on October 3, 2001, stating she did not want to
reinjure her foot. She was making $10.25 per hour when she resigned.
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On June 18, 2002, Dr. Kenneth Pollack, Sandberg’s treating physician,
found her to have reached maximal medical improvement and opined:
Ms. Sandberg has impaired sensory function over the 3rd and 4th
toes and dysesthesias of the medial and lateral plantar nerves.
Maximum impairment due to dysesthesias of these nerves are [sic]
indicated on Table 17-37, page 552 of the AMA Guides to the
Evaluation of Permanent Impairment, 5th ed. These maximum
values are 5% for each nerve, which I believe is appropriate due to
the severity of her pain. The sensory deficit is fairly limited, not
involving the entire peripheral distribution of both these nerves, and
therefore should be reduced from the maximum 5% lower extremity
impairment for each nerve. I therefore assign impairment due to
dysesthesias, 5% for the lower extremity due to medial plantar
nerve, 5% due to dysesthesias of the lateral plantar nerve, and 3%
due to sensory loss. Using the Combined Values Chart on page
604, these three values combine for a total of 13% of the lower
extremity.
After leaving Rubbermaid, Sandberg returned to a previous employer,
Bratz Texaco, as cashier and shelf stocker. She worked ―forty-plus‖ hours per
week for Bratz for about three years. When she resigned in January of 2004 she
was earning $10.25 per hour. She resigned because she could not ―handle
working on my feet on those long hours.‖
Since January 2004, Sandberg has been self-employed, performing
cleaning services for several local businesses.
The cleaning work provides
flexible hours. She works about four hours and earns about $185 per week.
On June 13, 2005, Sandberg filed a petition with the workers’
compensation commissioner alleging a December 9, 2000 work injury to her right
lower extremity, chronic regional pain syndrome (CRPS), and depression.
Rubbermaid admitted the injury to Sandberg’s right lower extremity, but
otherwise denied the allegations in the petition.
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Following a hearing, Larry Walshire, a deputy commissioner, issued a
ruling finding specifically that Sandberg was credible; Sandberg’s work injury
caused significant permanent impairment to the right leg; Sandberg left
Rubbermaid due to chronic pain; Sandberg did not suffer from CRPS ―because
the weight of evidence cannot support such a finding‖; Sandberg has developed
―major mental depression‖ that is ―likely permanent based upon the
uncontroverted views of Dr. [James] Corcoran [DO] who stated that the
depression is caused by the chronic pain and varies with the level of chronic
pain‖; the ―mental depression to date is not a cause of restrictions‖; and
Sandberg has not put much effort into seeking sedentary work ―despite having
the apparent skills to be successful in such work.‖
None of these findings
(except the permanency of Sandberg’s depression) was seriously challenged
upon hearing of Rubbermaid’s petition for judicial review to the district court.
Rubbermaid, however, did challenge the finding—adopted without
comment by the commissioner—that the ―injury which began in the foot, later
extended into the ankle and up the leg, has now extended via the nervous
system, including the brain, into the body as a whole.‖ From that finding, the
deputy concluded that Sandberg was entitled to be compensated for a body-asa-whole injury and found a sixty percent industrial disability under Iowa Code
section 85.34(2)(u) (2007).
Rubbermaid argued to the district court that chronic pain does not entitle
Sandberg to industrial disability. The district court agreed.
[T]he Court is aware of no case law that supports the notion that
chronic pain alone can serve as the basis for converting what would
otherwise be a scheduled member injury to a body-as-a-whole
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injury. Claimant has provided no such case law to the Court, and
petitioners assert there are no such cases.
. . . . [T]here have been several decision from the Workers’
Compensation Commissioner in which chronic pain has served as
the basis for a finding of a body-as-a-whole injury. However,
petitioners also note important factors about these decisions. First,
they are factually distinguishable from the case before the Court.
Second, they have all been written by the same deputy. From
reading the deputy’s decision here, it is clear to the Court that he
(and the Commissioner by summarily affirming the decision of the
deputy) is attempting to extend existing law. The deputy reasoned
that because chronic pain is by definition felt in the brain, it thus
serves as an injury to the body as a whole and justifies a finding of
industrial disability. The court can find no legal basis for such a
conclusion. There is nothing in the statute or existing case law that
suggests that a scheduled member injury becomes converted to an
injury to the body as a whole where chronic pain results from the
injury unless the pain becomes invasive to other parts of the body
as with CRPS. The Court concludes that the mere presence of
chronic pain does not justify a finding of an injury to the body as a
whole.
The district court also concluded that even though substantial evidence
supported the agency finding of permanent depression, given that the agency
also found that the depression did not result in work restrictions, the depression
could not serve as a basis for a finding of industrial disability. The district court
reversed the industrial disability award and remanded for further action.
Sandberg now appeals.
II. Scope and Standard of Review.
Our scope of review in workers’ compensation cases is governed by the
Iowa Administrative Procedure Act, chapter 17A (2007). Meyer v. IBP, Inc., 710
N.W.2d 213, 218 (Iowa 2006). Our review of the commissioner’s decision is for
errors at law, not de novo. Finch v. Schneider Specialized Carriers, Inc., 700
N.W.2d 328, 330 (Iowa 2005). ―Under the Act, we may only interfere with the
commissioner’s decision if it is erroneous under one of the grounds enumerated
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in the statute, and a party’s substantial rights have been prejudiced.‖ Meyer, 710
N.W.2d at 218.
The district court acts in an appellate capacity to correct errors of law on
the part of the agency. Mycogen Seeds v. Sands, 686 N.W.2d 457, 463 (Iowa
2004).
In reviewing the district court’s decision, we apply the standards of
chapter 17A to determine whether our conclusions are the same as those
reached by the district court. Clark v. Vicorp Rests., Inc., 696 N.W.2d 596, 603
(Iowa 2005).
Factual findings regarding the award of workers’ compensation benefits
are within the commissioner’s discretion, so we are bound by the commissioner’s
findings of fact if they are supported by substantial evidence. Mycogen Seeds,
686 N.W.2d at 464-65. Because factual determinations are within the discretion
of the agency, so is its application of law to the facts. Clark, 696 N.W.2d at 604;
see also Meyer, 710 N.W.2d at 219 (stating the reviewing court should ―allocate
some degree of discretion‖ in considering the agency’s application of law to facts,
―but not the breadth of discretion given to the findings of facts‖). We will reverse
the agency’s application of the law to the facts if we determine its application was
―irrational, illogical, or wholly unjustifiable.‖ Meyer, 710 N.W.2d at 218.
III. Merits.
Sandberg argues that the district court erred as a matter of law in
concluding her depression did not result in a body-as-a-whole injury to be
compensated industrially.
She also argues that chronic pain must be
compensated industrially for the same reasons that CRPS can be compensated
industrially.
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A. Depression.
Our Workers’ Compensation Act divides permanent partial disability into a
scheduled or unscheduled loss.
See Iowa Code § 85.34(2)(a)-(u) (2007).
Sections 85.34(2)(a)-(t) specify the scheduled injuries, such as a loss of a hand,
and set forth the compensation payable for such injuries.
Compensation for
scheduled injuries is based on functional impairment and is limited to the loss of
the physiological capacity of the body or body part. Mortimer v. Freuhauf Corp.,
502 N.W.2d 12, 14 (Iowa 1993).
In contrast, according to section 85.34(2)(u), unscheduled injuries are
compensated by determining the employee’s industrial disability. One arrives at
industrial disability by determining the loss to the employee’s earning capacity.
Id.
Measuring the employee’s loss of earning capacity requires the
commissioner to consider the employee’s functional impairment, age, education,
work experience, and adaptability to retraining; to the extent any of these factors
affect the employee’s prospects for relocation in the job market. Id.
When there is injury to some scheduled member and also to parts of the
body not included in the schedule, the resulting disability is compensated on the
basis of an unscheduled injury. Id. at 16.
Sandberg contends the agency’s finding of permanent depression justifies
the award of industrial disability, i.e., compensation on the basis of an
unscheduled injury.
We agree that depression may justify compensation for
injury to one’s body-as-a-whole. However, the agency did not base its award on
such a finding. In fact, the agency found her ―mental depression to date is not a
cause of restrictions.‖
No appeal was taken from this finding and it is thus
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binding upon us. Because the agency did not find industrial disability based on
Sandberg’s depression, we will not uphold the award on that basis.
B. Compensability of Chronic Pain.
It is the anatomical situs of the permanent injury or impairment that
determines whether the schedules in Iowa Code section 85.34(2)(a)-(t) are
applied.
Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
In
determining whether an impairment is scheduled or unscheduled, we look
beyond the situs of the original injury and consider the impact of the injury on all
parts of the body. Barton v. Nevada Poultry Co., 253 Iowa 285, 290, 110 N.W.2d
660, 663-64 (1961). In Barton, the employee suffered an injury to the foot, a
scheduled member. Id. at 287, 110 N.W.2d at 661.
Because of the injury,
causalgia affected the employee’s entire nervous system.
Id.
The supreme
court held that because of the causalgia, the employee was entitled to
compensation based on industrial disability.
Id. at 292, 110 N.W.2d at 664.
Thus, it is clear that when an employee has an injury to a scheduled member and
also to a part of the body not included in the schedule, the resultant permanent
disability is compensable as an unscheduled injury. Id.; see also Sherman v.
Pella Corp., 576 N.W.2d 312, 320-21 (Iowa 1998) (discussing thoracic outlet
syndrome, which would allow finding of industrial disability). Here, if an actual
impairment occurred to an unscheduled portion of the body, a disability has been
sustained to the body as a whole.
As already noted, one of the basic principles of judicial review in workers’
compensation cases is that, because the commissioner is the fact finder, the
commissioner’s findings are binding on the court if supported by substantial
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evidence. Lauhoff Grain v. McIntosh, 395 N.W.2d 834, 840-41 (Iowa 1986). We
will broadly and liberally apply those findings in order to uphold, rather than
defeat, the commissioner’s decision. Ward v. Iowa Dep’t of Transp., 304 N.W.2d
236, 237 (Iowa 1981).
But, the evidence must support the findings actually
made.
―[B]ased largely upon the views of [Dr. Pollack],‖ the agency concluded
that Sandberg’s injury ―extends to the brain and impacts the whole body.‖ Based
upon this finding, the agency then stated ―when the effects of such an injury spills
over or extends into the body as whole, the injury is compensated industrially
rather than limited to any particular schedule in Iowa Code section 85.34.‖
Only the most strained reading of Dr. Pollack’s deposition testimony can
support the agency’s finding that Sandberg’s injury ―extends to the brain.‖ Dr.
Pollack testified:
Q. If she doesn’t have recurrent tarsal tunnel syndrome and
the psychological test is okay to go through the spinal cord
stimulator, treatment, then does she have CRPS? A. She does not
have CRPS—
Q. Okay. A. –in my opinion.
Q. Okay. What if we rule out tarsal tunnel syndrome? Where
does that leave us? What’s the next step? A. That leaves us with
a woman who has chronic pain.
. . . . But she still would not meet the diagnostic criteria of
CRPS due to the lack of physical findings.
. . . . [C]hronic pain means continuous or ongoing. It’s
typically characterized by a minimum of three months’ duration.
And pain is what the individual defines as an unpleasant
sensory sensation.
....
Q. Is the brain involved? A. The brain has to be involved,
yes.
Q. So you can’t have chronic pain when the brain isn’t
involved? A. Pain is a cognitive experience, so if there is no brain
function, there can’t be an awareness of pain.
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From this exchange, the agency concludes Sandberg’s injury extends to her
brain.
There is no evidentiary basis for this finding—only an unreasonable
interpretation of testimony. We agree with the district court that there is nothing
in the statute or existing case law that suggests that a scheduled member injury
becomes converted to an injury to the body as a whole where chronic pain
results from the injury unless the pain becomes invasive to other parts of the
body as it does with CRPS.
Dr. Pollack repeatedly rejected a diagnosis of CRPS, which is a
recognized body-as-a-whole injury under Collins v. Department of Human
Services, 529 N.W.2d 627, 629 (Iowa 1995) (finding that reflex sympathetic
dystrophy, now known as CRPS, which is a dysfunction of the sympathetic
nervous system is compensable as an unscheduled injury).
Dr. Pollack
described CRPS in this manner:
A. It’s a condition of chronic pain and hypersensitivity that
leads to progressive deformity and dysfunction of the limb.
And it’s a disease of the central nervous system.
It’s thought to involve a loss of the modulating pathways in
the brain and spinal cord that suppress pain signals.
Dr. Pollack found no evidence to support a finding of CRPS. The agency made a
specific finding that Sandberg did not suffer from CRPS. Dr. Pollack concluded
Sandberg suffered a thirteen percent impairment of her lower extremity.
Dr. Pollack’s 2002 written opinion, noted above, also concluded that Sandberg’s
impairment is confined to the right lower extremity.
We agree with the district court that it appears the agency is attempting to
extend the existing law.
That responsibility lies with the legislature, not the
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agency. The district court properly concluded that the agency’s determination of
industrial disability based upon chronic pain alone must be reversed.
IV. Conclusion. The district court did not err in reversing the agency’s
finding of an unscheduled injury based upon chronic pain alone.
AFFIRMED.
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