WILLIAM BERGELL, Plaintiff-Appellant, vs. QWEST COMMUNICATIONS, INC., Defendant-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-306 / 08-1931
Filed June 17, 2009
WILLIAM BERGELL,
Plaintiff-Appellant,
vs.
QWEST COMMUNICATIONS, INC.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.
A claimant appeals from the district court decision on judicial review that
affirmed the agency decision claimant had no permanent partial disability.
AFFIRMED.
Channing Dutton of Lawyer, Lawyer, Dutton & Drake, L.L.P., West Des
Moines, for appellant.
Edward Krug and Sasha Monthei of Krug Law Firm, P.L.C., North Liberty,
for appellee.
Heard by Sackett, C.J., and Vogel and Miller, JJ.
2
SACKETT, C.J.
The claimant, William Bergell, appeals from the district court decision on
judicial review that affirmed the agency decision he suffered no permanent
disability from a work-related injury. He contends (1) it was legal error to ignore
the extensive benefits that had been paid, (2) substantial evidence supports a
finding of permanent partial disability, and (3) the determination that claimant had
an extensive back injury history is not supported by substantial evidence. We
affirm the district court.
I.
Background Facts and Proceedings.
In 2000, Bergell began his employment with the defendant, Qwest
Communications, Inc. (Qwest). Bergell reported a work injury to his back on May
11, 2005. Between the time of the injury and the decision of the agency that
denied benefits, Qwest paid for Bergell‟s medical care including back surgery,
healing period benefits, and benefits based on a twenty percent permanent
partial impairment rating by his treating physician in February of 2006.
Agency Proceedings. Bergell filed his workers‟ compensation claim in
April of 2006, claiming disputed issues of “rate; healing period; extent of
disability; medical benefits; penalty benefits; PPD;1 and IME.”2 The May 18,
2007 arbitration decision concluded Bergell sustained an injury that arose out of
and in the course of his employment with Qwest, but further concluded he “failed
to prove his injury resulted in a permanent disability.”
1
2
Permanent Partial Disability.
Independent Medical Examination.
3
On appeal, Bergell contended the company doctor gave him a twenty
percent permanent partial disability rating, Qwest paid benefits based on that
rating, and the actions of Qwest in paying benefits that included medical care,
healing period benefits, and disability benefits should be considered proof his
disability was caused by his work-related injury.
The March 2008 appeal
decision adopted and affirmed the arbitration decision as final agency action with
additional analysis concerning causation. The decision concluded, in part:
What this record shows is that prior to his February 2006 report
issuing an impairment rating and restrictions, Dr. Carlstrom had
previously opined that claimant recovered from an earlier work
injury of May 11, 2005, and this view was buttressed by the view of
Dr. Kuhnlein who felt that claimant also recovered from the May 11,
2005 injury when Dr. Carlstrom issued his report.
The most that can be said of Dr. Carlstrom‟s views is that
they are arguably unclear and they certainly do not establish
causation by a preponderance of the evidence.
District Court Proceedings. Bergell sought judicial review in April of
2008. He contended, in part, that the agency “failed to consider the pattern and
conduct of the employer up to the time of hearing which conclusively established
the compensable nature of the case;” the agency reached an unreasonable,
arbitrary, or capricious result; and the agency erred in concluding the record did
not support a permanent partial disability award.
The district court affirmed the agency action.
The court considered
Bergell‟s argument that the agency failed to give proper consideration to Qwest‟s
conduct in paying all benefits due as evidence of a compensable permanent
partial disability. It noted that the agency could consider the voluntary payment
of benefits as evidence, but was not required to give it any certain weight. The
court further noted that the agency “need not discuss every evidentiary fact and
4
the basis for its acceptance or rejection so long as the [agency‟s] analytical
process can be followed on appeal.” Concerning causation, the court considered
the conflict in the evidence and the principle that the agency, not the court,
weighs the evidence in concluding substantial evidence supported the agency‟s
findings. The court also concluded the agency‟s application of the law to the
facts “was not affected by erroneous interpretation of law; irrational reasoning;
failure to consider relevant facts; or irrational, illogical, or wholly unjustifiable
application of law to the facts.”
Medical Background. Bergell has a lengthy history of back problems.
Medical records reveal he received occasional treatment for minor back
problems in the 1980s and early 1990s. In 1996 he had two back surgeries at
the L5-S1 level. These surgeries resulted in a compromise case settlement in
1998. Two doctors rated Bergell‟s whole-body impairment at twelve percent and
sixteen percent. In 1999 he had another back surgery at the same level.
In May of 2002 he sought treatment for a work-related lumbar strain. It
resulted in no permanent impairment or restrictions. In July of 2004 Bergell was
treated for lower back and leg pain. It resulted in no permanent impairment or
work restrictions. Bergell‟s family doctor, however, noting Bergell‟s “problems
with low back pain,” and “three surgeries on his back for disc disease of the last
10 years,” recommended that he buy a hot tub “to use at home for his
symptomatology when he has acute flare-ups.”
On May 11, 2005, Bergell suffered another injury while at work, which he
immediately reported to Qwest. He was seen by Dr. Matlock that day, taken off
5
work, and given medication. On May 16 he underwent an MRI, which was later
compared with a March 1999 MRI. The comparison noted both MRI‟s showed “a
moderately large left posterior lateral extruded post operative disc herniation at
L5-S1,” and “virtually no change” between the two images. On May 17 Bergell
returned to work with restrictions, but was taken off work again on May 18. On
May 31 Dr. Carlstrom evaluated Bergell for lower back pain radiating into the left
leg. Dr. Carlstrom opined the recent MRI showed “a recurrent herniated disc on
the left at L5-S1. After a steroid injection on June 2, Bergell was released for
work without restrictions on June 15. In response to an inquiry from the claims
management company, Dr. Carlstrom marked the inquiry form that Bergell was
released without restrictions for full duty, that he reached maximum medical
improvement on June 16, that he sustained no permanent partial impairment,
and that he was released from Dr. Carlstrom‟s care.
On August 4, 2005, Bergell consulted a physician‟s assistant, complaining
of low back pain. The next day Bergell returned, stating he had sneezed that
morning and felt immense pain in his lower back. He was referred again to Dr.
Carlstrom. Bergell saw Dr. Carlstrom on September 1, complaining of left leg
pain.
On September 28, Dr. Carlstrom performed another lumbar laminectomy
at the L5-S1 level. On October 4, Bergell returned to Dr. Carlstrom, complaining
of low back pain. A November 8 follow-up MRI showed little change from the
May MRI. On November 10, Dr. Carlstrom told Bergell to take it easy for another
month. On December 15, Bergell consulted Dr. Carlstrom for lower back and leg
6
pain. In reviewing a January 3, 2006 CT scan and myelogram, “sizeable disc
protrusion” was “not seen.”
On February 7, 2006, Bergell again consulted Dr. Carlstrom for pain in the
low back with some radiating to his leg.
Following this consultation, Dr.
Carlstrom wrote a letter to Dr. Honsey, stating:
At this point I think he should be considered to be at maximum
benefits of healing. I think he should be considered to have
sustained impairment of about 20% of the body as a whole due to
his back condition, and I think he needs to have permanent
restrictions placed upon him. . . . I think he should be considered to
have reached maximum benefits of healing at this time.
Bergell returned to work with restrictions that prevented him from working
in his former position. Qwest assigned him temporarily to a lighter duty position
and told him he had eighty days to find another suitable position within Qwest or
he would be terminated. Bergell investigated, but did not accept another position
within the eighty days. His employment with Qwest ended in June of 2006.
Dr. Honsey treated Bergell for sciatica in May and August of 2006, then
referred him back to Dr. Carlstrom, who requested another MRI. He reviewed
the MRI in December of 2006, noting the MRI and bone scan were “basically
normal.”
Qwest requested an independent medical examination by Dr. Kuhnlein.
Following the November 16 exam, Dr. Kuhnlein opined, in part:
There is little question that Mr. Bergell had a significant
problem with his lumbar spine prior to the May 11, 2005 incident.
He had intermittent flares of his symptoms, consistent with the
natural history of the condition. He had also had three surgeries for
the condition, indicating fairly significant pathology before the May
11, 2005 injury. However, his symptoms had resolved at that point.
While walking up the stairs of a customer‟s home, he had a
symptom flair again. This resolved after an epidural injection. It
7
recurred, and significantly worsened when he sneezed on or about
August 4, 2005.
. . . Medically, I don‟t see that dipping his head to avoid an
overhang would constitute an new injury to the lumbar spine.
There was no significant lumbar stressor when doing so. . . .
. . . Mr. Bergell recovered after the steroid injection and was
able to return to work on full-duty status. Both Dr. Thomas Hansen
and Dr. Thomas Carlstrom released him to full-duty work with no
further impairment. . . .
Mr. Bergell was able to work thereafter, his symptoms did
flare somewhat, but it was only when he sneezed on or about
August 4, 2005, that his symptoms permanently changed,
according to the available record. This would not be work-related.
Dr. Kuhnlein also discussed Dr. Carlstrom‟s May 31, 2005 comments that
the MRI taken showed a recurrent disc herniation:
When reviewing the report of the MRI scan, an addendum was
made on June 10, 2005, so it was not until then that the radiologist
had compared the films to those from 1999. This would explain
why Dr. Carlstrom might have felt that this was a recurrent disc
herniation. Unfortunately, the MRI scan was not repeated prior to
the September 28, 2005 surgery, to see if the disc had progressed.
It was only later that it was repeated. It initially showed a recurrent
disc, but the CT with myelogram did not show the disc herniation.
Therefore, it appears that Dr. Carlstrom‟s September 28, 2005
surgery dealt with a disc herniation, which did not recur, and
[Bergell‟s] ongoing symptoms would represent postoperative
changes. These would be unrelated to the May 11, 2005 injury, . . .
II.
Scope and Standards of Review.
Under Iowa Code chapter 17A (2007), a district court is authorized to
review decisions rendered by administrative agencies. Bearce v. FMC Corp.,
465 N.W.2d 531, 534 (Iowa 1991). The district court may reverse or modify an
agency‟s decision if the decision is erroneous under a ground specified section
17A.19 and a party‟s substantial rights have been prejudiced.
§ 17A.19(10).
Iowa Code
When we review the district court‟s decision, “we apply the
standards of chapter 17A to determine whether the conclusions we reach are the
8
same as those of the district court. If they are the same, we affirm; otherwise we
reverse.” Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004).
Our review of an agency‟s decision is for correction of errors at law.
Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999). Our role
as an appellate court reviewing this agency decision is threefold:
(1) to
determine if the commissioner applied the proper legal standard or interpretation
of the law, (2) to determine if there was substantial evidence to support the
commissioner‟s findings, and (3) to determine if the commissioner‟s application of
the law to the facts was irrational, illogical, or wholly unjustifiable. Clark v. Vicorp
Rests., Inc., 696 N.W.2d 596, 603-04 (Iowa 2005) (discussing the interplay
between Iowa Code sections 17A.19(10)(c), (f), and (m)).
It is well-settled that “„[t]he interpretation of workers‟ compensation
statutes and related case law has not been clearly vested by a provision of law in
the discretion of the agency.‟” Lakeside Casino v. Blue, 743 N.W.2d 169, 173
(Iowa 2007) (citation omitted).
Therefore, we do not defer to the agency‟s
interpretation of the law. Id.; see Iowa Code § 17A.19(10)(c).
Factual determinations in workers‟ compensation cases, on the other
hand, are “„clearly vested by a provision of law in the discretion of the agency.‟”
Mycogen Seeds, 686 N.W.2d at 465 (citation omitted). We defer to the agency‟s
factual determinations if they are based on “substantial evidence in the record
before the court when that record is viewed as a whole.” Iowa Code § 17A.19
(10)(f). “Substantial evidence” is:
the quantity and quality of evidence that would be deemed
sufficient by a neutral, detached, and reasonable person, to
9
establish the fact at issue when the consequences resulting from
the establishment of that fact are understood to be serious and of
great importance.
Id. § 17A.19(10)(f)(1). When we review factual questions delegated to the
agency, “the question before us is not whether the evidence supports different
findings than those made by the agency, but whether the evidence „supports the
findings actually made.‟” Larson Mfg. Co., Inc. v. Thorson, 763 N.W.2d 842, 850
(Iowa 2009) (quoting St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 649 (Iowa
2000)).
The application of the law to the facts is also vested in the agency.
Mycogen Seeds, 686 N.W.2d at 465.
We will reverse only if the agency‟s
application was “irrational, illogical, or wholly unjustifiable.”
Id.; Iowa Code
§ 17A.19(10)(l). This requires us to give some deference to the agency‟s
determinations, but less than we give to the agency‟s findings of fact. See Arthur
E. Bonfield, Amendments to Iowa Administrative Procedure Act, at 70 (1998).
III.
Analysis.
Consideration of Benefits Paid. Bergell contends the agency erred in
not considering Qwest‟s conduct in paying extensive benefits over an extended
period of time. These include (1) all medical charges, including surgery, (2) all
healing period benefits from May 11, 2005, to February 7, 2006, and (3) all
permanent partial disability benefits for the sixty-nine weeks from February 8,
2006, to the date of the agency hearing on March 17, 2007. He cites Tussing v.
George Hormel & Co., 461 N.W.2d 450, 452 (Iowa 1990), in support of his
argument that the agency can consider an employer‟s conduct in paying benefits
as proof of disability arising from an injury.
10
In Tussing, the supreme court considered the effect of a 1982 amendment
to Iowa Code section 86.13, which then provided, in relevant part:
If an employer or insurance carrier pays weekly
compensation benefits to an employee, . . . [t]he payments
establish conclusively that the employer and insurance carrier have
notice of the injury for which benefits are claimed but the payments
do not constitute an admission of liability under this chapter or
chapter 85, 85A, or 85B.
Iowa Code § 86.13 (1983). In interpreting this language, the supreme court said:
This enactment provides that voluntary payments “establish
conclusively that the employer and insurance carrier have notice of
the injury for which benefits are claimed but the payments do not
constitute an admission of liability under this chapter.”
We do not interpret this language as indicating that under no
circumstances may voluntary benefit payments be considered
evidence of a work-related injury. We believe, rather, that this
amendment was intended to reverse prior law which viewed
voluntary payments as being conclusive under some circumstances
in establishing that an injury arose out of and in the course of
employment. Moreover, we believe that, in making up the issues
for hearing before the deputy commissioner, the parties
acknowledged that some work-related injury occurred on or about
May 9, 1983, for which benefits had been paid.
Tussing, 461 N.W.2d at 452 (emphasis added).
Bergell asserts the language in Tussing emphasized above is not limited
to proving injury.
He argues the lesson from Tussing is that the conduct of
extensive payment and funneling of case activity to a specific injury date should
not be ignored by the decision maker, or if ignored, the decision should be
“sufficiently detailed to show the path taken through conflicting evidence.”
Terwilliger v. Snap-on Tools Corp., 529 N.W.2d 267, 274 (Iowa 1995). He further
argues that Qwest‟s conduct in this case should be conclusive evidence of
Bergell‟s permanent impairment resulting from a work-related injury.
11
Neither the arbitration decision nor the agency‟s appeal decision mentions
Tussing or Qwest‟s voluntary payment of benefits. The district court noted it was
“undisputed that Qwest voluntarily paid Bergell benefits following his May 11,
2005 injury.” The court acknowledged Tussing allowed that voluntary workers‟
compensation payments may be considered as evidence that a claimant suffered
an injury that arose out of and in the course of employment. See Tussing, 461
N.W.2d at 452. The court continued:
However, the issue here is whether the work-related injury caused
permanent disability. Tussing does not speak to this issue.
Further, Tussing merely allows voluntary payment of workers‟
compensation to be considered as evidence; it does not require
such evidence be given a certain weight.
See id. The court did not assume the agency did not consider the voluntary
benefits merely because they were not mentioned. Instead, the court found the
agency‟s findings were supported by substantial evidence.
We believe the district court properly understood Tussing as not
mandating that the agency consider the evidence of voluntary payments and that
even if it considers such evidence, it is for the purpose of establishing a workrelated injury. Our conclusions on this issue are the same as those of the district
court. Accordingly, we affirm on this issue. See Mycogen Seeds, 686 N.W.2d at
464.
Proof of Permanent Disability. Bergell contends the district court erred
in affirming the agency‟s denial of benefits for failure of proof of permanent
impairment resulting from the May 11, 2005 injury. He argues the statement in
the agency decision that “no physician” has offered an opinion of permanent
impairment from the May 11, 2005 injury is erroneous.
12
There is conflicting evidence from Dr. Carlstrom alone. He filled out a
form from Qwest‟s claims management company on June 24, 2005, that Bergell
reached maximum medical improvement, was released to work with no
restrictions, and had no permanent impairment from the May 11, 2005 injury. On
February 7, 2006, Dr. Carlstrom wrote to Dr. Honsey and said Bergell reached
maximum medical improvement and had a twenty percent impairment of the
body as a whole, but did not expressly relate the impairment rating to the May
2005 injury. The only mention in the letter of any identifiable point of reference is
that Bergell was “almost four months status post lumbar laminectomy,” but Dr.
Carlstrom did not expressly relate the impairment rating to the surgery either.
The agency, when considering how to weigh Dr. Carlstrom‟s February
2006 letter and whether to conclude the impairment rating related to the May
2005 injury noted:
Arguably, I could infer that the doctor was referring to the
effects of the work injury when he issued the February 2006 rating
and restrictions, but only if the evidence shows a lack of back
symptoms before the work injury and a continuous pattern of
symptoms and treatment of those symptoms by the doctor until the
rating was issued. That is not true in this case.
The appeal decision details the evidence that supports the agency conclusion
that Bergell did not prove causation: his long history of lower back problems,
including three prior surgeries; Dr. Carlstrom‟s June 24, 2005 opinion that Bergell
did not suffer any permanent disability from the May 11, 2005 injury; Bergell‟s
return to work without restrictions until symptoms recurred in August of 2005; and
Dr. Kuhnlein‟s opinion that Bergell had recovered from the May 2005 injury when
Dr. Carlstrom completed the June 2005 form.
13
“Whether an injury has a direct causal connection with the employment or
arose independently thereof is essentially within the domain of expert testimony.”
Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995). The
agency considered the expert testimony. Bergell argues Dr. Kuhnlein‟s opinion
should be given no weight because his opinion that Bergell sustained no
significant injury on May 11, 2005, is wrong. At issue is how to reconcile Dr.
Carlstrom‟s reading of the May 2005 MRI and Dr. Kuhnlein‟s, as set forth in the
appeal decision:
First, I agree with claimant in this appeal that Dr. Kuhnlein‟s
comparison of the March 1999 MRI and the May 2005 MRI does
not contradict the views of the treating physician, Dr. Carlstrom.
The earlier MRI revealed a herniated disc later corrected by
surgery. It would not be unusual for the later MRI to show no
change given the treating physician‟s diagnosis of a recurrent
herniated disc at the same vertebral level.
Bergell argues that if both the March 1999 and May 2005 MRIs showed a
herniated disc and the March 1999 MRI showed his condition before it was
corrected by the 1999 surgery, then the May 2005 MRI shows a new herniation
of the disc caused by his injury. Dr. Carlstrom opined the 2005 MRI showed a
recurrent disc herniation. Dr. Kuhnlein‟s opinion noted, “When Mr. Miller talks
about a disc protrusion at L5-S1 on May 17, 2005, and Dr. Carlstrom talks about
a recurrent disc herniation on May 31, 2005, I do not believe that they had the
pre-existing MRI scans available.”
He opined, “This would explain why Dr.
Carlstrom might have felt that this was a recurrent disc herniation.”
Dr.
Kuhnlein‟s opinion could be read as disagreeing with Dr. Carlstrom‟s, so Bergell
asserts the agency did not weigh the evidence properly.
14
The weight given to expert opinions is for the finder of fact, in this case the
agency, and that may be affected by the completeness of the premise given the
expert and other surrounding circumstances.
See id.
The mere fact that
inconsistent conclusions may be drawn from the same evidence does not mean
substantial evidence does not support the agency‟s determinations.
See
Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995). The
district court considered the expert opinions, the causation analysis of both
agency decisions, and the appeal decision‟s additional analysis in determining
substantial evidence supported the agency‟s decision, even though the court
“may have viewed the evidence contrary to the [agency‟s] view.”
The district court correctly set forth the scope of review that “where there
is conflict in the evidence or when reasonable minds might disagree about the
inferences to be drawn from the evidence,” the court “may not interfere” with the
agency decision. See Ward v. Dep’t of Transp., 304 N.W.2d 236, 239 (Iowa
1981). “The ultimate question is not whether the evidence supports a different
finding, but whether the evidence supports the findings actually made.” Munson
v. Dep’t of Transp., 513 N.W.2d 722, 723 (Iowa 1994).
Clearly there is conflict in the evidence, even as to whether the expert
opinions agree or disagree. Our scope of review controls the outcome on this
issue. We, like the district court, determine substantial evidence supports the
agency‟s decision. As our conclusion is the same as the district court‟s we affirm
on this issue.
15
Error in Factual Determination.
Bergell contends the agency‟s
determination that he had an extensive back injury history is not supported by the
evidence. He asserts this mistaken determination “is a critical finding that is
central to the result.” He asserts, “Even the district court correctly found that
[Bergell] certainly had no significant care during [the] five-year period [before his
injury].”
The district court outlined Bergell‟s history of problems with his back.
Concerning only the time following his third back surgery, the court mentioned a
2002 lumbar strain with radiating leg pain and 2004 treatment for back pain and
leg pain. The record, however, contains other evidence of back problems during
the five years Bergell was employed by Qwest before the May 2005 injury.
The arbitration decision provides these details:
In 2001 claimant treated on several occasions with Scott
Honsey, M.D. for continued low grade back discomfort. In a
January 30, 2002 letter Dr. Honsey recommended that claimant get
a hot tub to deal with low back pain and chronic problems with
sciatica.
Claimant also treated with Patrick Linthicum, D.O., from
1991 through 2003 for lower back pain.
In May of 2002, claimant had a lumbar strain with pain
radiating to the left leg following a slipping injury at work with
Qwest. Claimant was returned to work without impairment or
permanent restrictions.
The appeal decision noted,
an extensive history of back problems before the May 11, 2005
work injury, including three prior back surgeries to the same
vertebral level that is involved in this case, L5-L1 [sic], and a
pattern of recurrent back pain in the years preceding the injury.
Bergell argues that his back was fine after he had the 1999 surgery up to
the time he was injured in 2005.
The evidence does not support his view.
16
Although one might take issue with the agency‟s characterization of the history
as “extensive,” the district court also noted continued problems in the five years
leading up to the injury. Regardless of how Bergell‟s history of back problems
are described, it is clear they continued from before his first surgery in 1996 until
at least 2004. As the agency‟s appeal decision aptly states: “The issue in this
case is not whether claimant has a back problem; the issue is what has caused
his back problem.” The agency concluded the evidence was not sufficient to
establish a disability proximately caused by the May 11, 2005 injury. In affirming
the agency, the district court concluded substantial evidence supported that
conclusion. We agree with the district court and affirm on this issue.
IV.
Conclusion.
We have considered all of Bergell‟s claims and arguments from his briefs
and oral argument. Having reviewed the evidence in the record, the two agency
decisions, and the district court‟s decision, our conclusions are the same as
those of the district court. We therefore affirm the decision of the district court
that affirmed the agency‟s appeal decision.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
