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IN THE COURT OF APPEALS OF IOWA No. 7-587 / 06-1217 Filed November 29, 2007 STEPHEN MELSON, Petitioner-Appellant, vs. CITY CARTON RECYCLING, VIRGINIA SURETY COMPANY, and SECOND INJURY FUND OF IOWA, Respondents-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.

Employee appeals from a district court judicial review ruling affirming the appeal decision of the workers' compensation commissioner. AFFIRMED.

Bob Rush and Gary B. Nelson of Rush & Nicholson, P.L.C., Cedar Rapids, for appellant. Chris Scheldrup and Charles A. Blades of Scheldrup Law Firm, P.C. Cedar Rapids, for appellees City Carton Recycling and Virginia Surety Company. Thomas J. Miller, Attorney General, and Deborah M. Stein, Assistant Attorney General, for appellee Second Injury Fund of Iowa.

Heard by Huitink, P.J., and Miller and Eisenhauer, JJ.

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MILLER, J. Stephen Melson appeals from a district court judicial review ruling affirming the appeal decision of the workers' compensation commissioner. We affirm the judgment of the district court. I. BACKGROUND FACTS AND PROCEEDINGS. Melson's employment with City Carton Recycling, a paper recycling company, began in 1992. He worked for City Carton as a route driver, which involved driving a truck to various businesses and picking up their recyclable paper with a skid loader. At each pick-up site, Melson had to pull out steel ramps weighing approximately "137 pounds apiece." He would then drive the skid

loader down the ramps and use it to load the recyclable paper onto the trailer of the truck. On August 16, 2001, Melson was walking down the ramps when his right foot slipped out from under him and got caught between the ramps. He sought medical treatment immediately following the accident and was eventually diagnosed by Dr. Nate Brady in St. Luke's Work Well Clinic with a non-displaced fracture of his right ankle. He was placed in an equalizer boot, given exercises to perform at home, and removed from work. Melson was released to work with assistance on September 13, 2001. He resumed working as a route driver on September 17, and was released to work with no restrictions about one week later. Around that same time, Melson also returned to his part-time job delivering pizzas. On December 21, 2001, Melson visited Dr. Karen Harmon for a routine checkup after his former physician closed his practice. During his initial

appointment with Dr. Harmon, Melson reported a history of depression and

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"problems with his legs, knees and ankles." After examining Melson, Dr. Harmon noted he had a "[h]istory of arthritis in the ankles secondary to post traumatic changes" and "[m]ild varicosities in the ankles." Melson did not seek further medical treatment until May 2002 when he saw a nurse practitioner at Mercy Care North for "left foot and ankle pain and swelling" that had "been bothering him off and on for about a year." An x-ray was taken, and it showed multiple "degenerative changes" within the left foot and Achilles tendon area. Melson was referred to Dr. Jeffrey Nassif for treatment of his left ankle pain. Dr. Nassif noted Melson "has had intermittent leg pain for several years but for the last 4-5 months has been getting worse in his ankle." Dr. Nassif's impression after examining Melson was Achilles tendonitis. He

placed Melson in an equalizer boot and ordered an MRI. On June 10, 2002, Dr. Nassif informed Melson that his MRI revealed he had "chronic distal Achilles tendinopathy with some more limited acute injury." Dr. Nassif recommended "further immobilization" of his left ankle with the equalizer boot and restricted Melson to "sit-down work only." Melson returned to Dr. Brady for treatment at the Work Well Clinic on June 25, 2002. He informed Dr. Brady "his lower legs have been hurting over the course of months," which he attributed "to the pedaling of the skid loader that he uses while at work." Melson also informed Dr. Brady he "has pain in his legs when he gets out of the loader to pull the steel ramps in and out of his truck." Dr. Brady "reiterated Dr. Nassif's recommendation for sitting job only and to use the wheelchair as needed to get around while at work." Melson saw Dr. Brady again on July 9, 2002, due to "increased lower extremity pain." Dr. Brady stated he

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"continue[d] to be unsure about the cause of all of Mr. Melson's lower extremity pain." He restricted Melson from working "to see if completely stopping his

activities and allowing him to elevate and ice his legs will improve this pain." Melson returned to Dr. Brady about one week later with "no improvement in his pain" despite being off work. Melson was evaluated by Dr. Warren Verdeck on July 23, 2002, for possible surgical intervention. Melson told Dr. Verdeck he was experiencing pain in both ankles, "but his main problem is the left one." Dr. Verdeck opined Melson "may not be able to return to" his job as a route driver "even with surgery." Melson followed up with Dr. Verdeck on August 6, 2002, complaining of continuing "problems with both ankles" despite the equalizer boot and therapy. Dr. Verdeck "suspect[ed] with the problems he is having that he is likely going to be unable to return to his regular occupation, which involves a lot of repetitive work with foot pedals." He believed "both ankle problems are more of a chronic repetitive stress syndrome." Dr. Verdeck gave Melson a "prescription for a

wheelchair for any prolonged distance." Dr. Verdeck and Dr. Brady released Melson to work with the restriction that he perform "sit down" work only. Melson's condition persisted with minimal improvement. On October 22, 2002, Dr. Verdeck consequently stated Melson had reached maximum medical improvement. He believed Melson would "continue to be restricted to a sit-down job only, likely on a permanent basis." However, with the exception of one week in September, City Carton was unable to accommodate Melson's work restriction. His employment with the company was accordingly terminated in

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November 2002. He sought treatment for depression following his termination from City Carton. Melson filed a petition with the Iowa Workers' Compensation

Commissioner on January 16, 2003, alleging he suffered a right ankle injury on August 16, 2001, and a cumulative bilateral injury on June 10, 2002. He sought recovery from City Carton and its insurance carrier, Virginia Surety Company, for both injuries. He also sought recovery from Second Injury Fund of Iowa (the Fund) under the provisions of Iowa Code section 85.63 (2003). Following an arbitration hearing, the deputy workers' compensation commissioner awarded Melson temporary total disability benefits for the August 16, 2001 right ankle injury at a weekly rate of $390.01 and medical expenses in the amount of $848.53. 1 However, he concluded Melson did not suffer any

permanent disability from the August 16, 2001 injury and accordingly denied Melson's request for permanent disability benefits. The deputy further concluded City Carton and Virginia Surety paid Melson at an incorrect rate, resulting in an underpayment of $60.24 for the temporary benefits for the August 16, 2001 injury, but he declined to award Melson penalty benefits. As to the June 10, 2002 claimed injury, 2 the deputy determined the injury did not arise out of the course of Melson's employment with City Carton and rejected his remaining claims as to that injury date against all of the defendants. Finally, the deputy

Prior to the arbitration hearing, the parties stipulated Melson's August 16, 2001 right ankle injury arose out of the course of his employment with City Carton. The parties also stipulated he was entitled to 4.429 weeks of temporary total disability for that injury. 2 The parties stipulated that Melson's alleged cumulative injury manifested itself on June 10, 2002.

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awarded City Carton and Virginia Surety a credit of $14,699.28 for payments made to Melson for the June 10, 2002 noncompensable injury. Melson appealed, and the workers' compensation commissioner affirmed and adopted the deputy's decision. Melson then filed a petition for judicial

review. Following a hearing, the district court affirmed the agency decision. Melson appeals. He claims the agency erred in not (1) making essential findings to support legal conclusions; (2) finding permanent impairment arose out of the August 16, 2001 right leg injury; (3) finding he suffered a work injury on June 10, 2002; (4) finding the June 10, 2002 injury and resulting termination was a proximate cause of his depression; (5) awarding industrial disability benefits; (6) finding he suffered from two qualifying injuries entitling him to recovery from the Fund; (7) assessing a penalty for underpayment of benefits; and (8) awarding medical expenses for the June 10, 2002 injury. He also claims the amount of the credit awarded to City Carton and Virginia Surety was incorrect. II. SCOPE AND STANDARDS OF REVIEW. The Iowa Administrative Procedure Act, chapter 17A of the 2005 Iowa Code, governs the scope of our review in workers' compensation cases. Iowa Code

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