Preview:

IN THE COURT OF APPEALS OF IOWA No. 0-892 / 10-0943 Filed February 9, 2011

TRACO and AMERICAN ZURICH INSURANCE COMPANY, Petitioners-Appellees/Cross-Appellants, vs. WILLIAM H. DUMLER, Respondent-Appellant/Cross-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.

William Dumler appeals from the district court's ruling on judicial review reversing the workers' compensation commissioner's award of permanent total disability benefits. REVERSED AND REMANDED.

Richard B. Maher, Omaha, Nebraska, for appellant. Christopher Spencer, Timothy W. Wegman, and Joseph M. Barron of Peddicord, Wharton, Spencer, Hook, Barron & Wegman, L.L.P., West Des Moines, for appellees.

Heard by Vaitheswaran, P.J., and Eisenhauer and Danilson, JJ.

2 DANILSON, J. William Dumler appeals from the district court's ruling on judicial review upholding the workers' compensation commissioner's finding that Dumler suffered a work-related injury on August 29, 2006, but reversing the commissioner's permanent total disability award. The only expert opinion on record concluded Dumler suffered a work-related injury and the injury and subsequent hip replacement surgery resulted in a fifteen percent permanent functional impairment. A subsequent vocational evaluation found Dumler had been rendered unemployable and thus sustained a 100% industrial disability. The commissioner awarded permanent total disability benefits and determined Dumler was an odd-lot employee. The district court reversed on finding Dumler failed to prove his disability was caused by the work injury and that he was an odd-lot employee. We conclude the district court improperly weighed the

evidence in overruling the commissioner's finding that Dumler's work-related injury proximately caused his disability. Because Dumler also presented

substantial evidence that he met the criteria of an odd lot employee, we reverse the judgment of the district court and remand the case for the district court to enter judgment affirming the decision of the workers' compensation

commissioner. I. Background Facts and Proceedings. William Dumler sought workers' compensation benefits from his former employer, Traco, and its insurer, Zurich Insurance Company, for an alleged workrelated injury. Traco rejected the claim, and a hearing was held before a deputy workers' compensation commissioner on December 12, 2008.

3 Dumler, age seventy-one at the time of trial, has a ninth-grade education and has been previously employed with the National Guard, poultry and dairy factory labor, power plant maintenance, street maintenance, farm work, railroad joint straightener, and construction laborer. In September 1998, at the age of sixty-one, Dumler began working for Traco assembling doors and windows. He began collecting Social Security retirement benefits at age sixty-five, but intended to continue to work as long as possible. Midmorning on August 29, 2006, Dumler reached for pieces of a door and caught his right leg on a torn fatigue mat. His right leg twisted and he fell into an assembly table. Dumler felt a stinging sensation in his right hip. Dumler

continued to work and finished his shift, but recalled experiencing increasing pain in his right hip. Dumler testified he did not report the incident to his supervisor that day because "[w]e tried to keep a pretty good record there at Traco [of not having accidents]." Dumler worked the following day as well, but went to his family practice clinic on Thursday, August 31, 2006, where he was seen by physician's assistant Don Scarborough. Scarborough's office notes of the August 31, 2006 visit indicate Dumler comes in today with right hip pain off and on for the last couple of days. It is getting to the point where he can hardly walk. He points to his right buttock where it hurts. He has had disk disease and degenerative joint disease of his back. He states he cannot really tell if it is part of that or something new. Scarborough also noted a history of prostate cancer. Dumler testified he could not recall if he told Scarborough he fell at work during that office visit. Scarborough prescribed pain medication and indicated an MRI would be ordered if pain did not improve. Because stretching activities performed in the office

4 seemed to improve Dumler's pain, Scarborough wrote: "we are convinced that this is probably more of a muscular issue than a true neurologic issue acutely." Scarborough provided a medical excuse from work for two days. Dumler's wife, Dorothy Dumler, recalled her husband telling her about his August 29, 2006 fall when he got home from work that day. He told her "he fell at work by catching his foot, tangling his foot up in a rug." She stated he went to work the following day and when he came home "he was hurting worse." Dorothy made the August 31, 2006 appointment with Scarborough for Dumler. Upon his return to work following the long Labor Day weekend, Dumler reported the August 29 incident to his employer. The incident report notes

Dumler "had extreme pain in his right hip" the next day. On September 15, Dumler was seen by Dr. William Artherholt complaining of "increasing pain in his right iliac crest, sacroiliac area, and now having more pain going down his right leg with some numbness and tingling." Because of Dumler's prostate cancer history, the metastatic disease needed to be evaluated. Dr. Artherholt scheduled Dumler for an MRI and prescribed pain medication. Dr. Artherholt restricted Dumler from working "until further notice." On September 21, 2006, Dumler underwent an MRI of his right hip. The report by Dr. Bruce Baron to Scarborough noted an "ill defined 3 cm wide area of marrow replacement involving the anterior aspect of the junction of head and neck of the right femur." Dr. Baron wrote it "may represent tumor replacement due to prostate carcinoma with an incomplete small fracture line or edema mimicking tumor with a small incomplete stress fracture line."

5 Dumler was referred to orthopedic surgeon, Dr. Clifford Kent Boese, who evaluated him for right hip pain on October 4, 2006. Dumler told Dr. Boese he twisted his right hip and stumbled a bit at work and then had a stinging pain in his hip. Dr. Boese tentatively diagnosed Dumler with a nondisplaced femoral neck fracture. Dumler's condition did not improve with conservative treatment, and Dr. Boese recommended hip replacement. On January 16, 2007, Dumler underwent a hip replacement. During the surgery, Dr. Boese noted evidence of degenerative changes, a partial fracture, and no evidence of a tumor. Dr. Boese opined that eighty percent of the cause of Dumler's pain was from the nondisplaced fracture. Dumler was restricted from working until April 5, 2007, when he was "released without restrictions" by Theresa Gallo, P.A.-C. Yet Ms. Gallo noted, "Work Status: No lifting greater than 30 pounds/Retired." Dumler was terminated by Traco on April 23, 2007. But Dumler continued to have pain problems after the hip replacement surgery. Dr. Boese testified that x-rays taken on October 3, 2007, "showed no complications regarding his hip, and I felt the pain was due to his back problem." A bone scan was ordered "to rule out any metastatic cancer lesion from his prostate and an MRI of his back to see if we could figure out where he was having pain from at this point." The bone scan showed "no evidence of metastatic lesion from the prostate and no evidence of loosening or infection of the hip joint." Dumler also underwent an MRI but did not follow up with Dr. Boese within a week as requested. On March 28, 2008, Dr. Boese indicated in a letter to Dumler's legal counsel that Dumler "sustained a femoral neck fracture of the right hip, which

6 was a direct result of a work accident on August 29, 2006 at Traco." Dr. Boese also stated the injury was treated with a hip replacement; "maximum medical improvement in regards to his work injury and subsequent hip replacement" was reached as of January 16, 2008; and Dumler's continued complaints of low back pain were not related to the work injury. On April 17, 2008, Dumler was seen by physician's assistant Theresa Gallo of Dr. Boese's practice. She indicated he was doing well at that time, was not complaining of pain in his hip area, and was walking well. A hip x-ray

showed no problems with the hip replacement, and Gallo released him without restrictions. On October 16, 2008, Dr. Boese responded to a letter from Dumler's legal counsel, stating with a reasonable degree of medical certainty: William Dumler sustained injuries resulting in permanent impairment as a result of a work accident at Traco on August 29, 2006. This resulted in hip replacement surgery to the right hip. The patient was seen in the Clinic on April 17, 2008 for a checkup, two [sic] years following his total hip arthroplasty. At that time Mr. Dumler was doing well with the hip replacement. X-rays showed the implants in good position without sign of complication. According to AMA Guides to Evaluation of Permanent Impairment, 5th Edition, Table 17-33, Mr. Dumler has a 15% whole person impairment. He has reached maximum medical improvement in regards to his hip injury and subsequent surgery. His impairment is permanent in nature. The hip surgery for Mr. Dumler and subsequent follow up was a direct result of his August 29, 2006 work injury. Mr. Dumler will require annual checkup appointment with xrays indefinitely to monitor his hip replacement. Mr. Dumler has no work restrictions in regards to his hip injury and subsequent hip surgery. An October 23, 2008 functional capacity evaluation (FCE) by Doug Page noted Dumler had numerous limitations including shortness of breath and rapid

7 elevation in heart rate with all physical activity, unsteady gait pattern when walking, extreme difficulty in crouching and kneeling activities, difficulties lifting, tremors in both hands, balance difficulties, and an inability to stand for prolonged periods of time. The FCE indicated Dumler capable of "Sedentary-Light" work. A vocational evaluation was conducted on November 10, 2008, by Alfred J. Marchisio. He summarized the evaluation as follows: I would start my final opinions by stating that simply because Mr. Dumler is now 71 years old and has a disabling condition, one would not automatically consider a person with these circumstances to be totally disabled. However, Mr. Dumler's functional limitations/restrictions are so stringent that he cannot return to his customary occupations, i.e. manufacturing or construction, which he has done since 1971 until August 2006. Furthermore, he has limited residual capabilities to work in alternate occupations which would be within a reasonable commute of his home in Villisca, IA. Normally, if a person who had physical restrictions was still employable, I would consider a job market to include Red Oak, Corning, Clarinda and Shenandoah, IA to be a reasonable commute. However, Mr. Dumler's circumstances are that he cannot tolerate walking and standing, has limited capabilities with climbing, squatting, bending, et cetera. Certainly, he does not have any skills to work in clerical or office occupations, which would allow him to sit the majority of the day. Otherwise, there are extremely few assembly jobs within a 30mile radius which Mr. Dumler would have access to. I have considered the notion that perhaps Mr. Dumler might be considered an odd-lot employee. However, in my opinion his services are beyond the phrase "so limited in quality, dependability, or quantity, that a reasonably stable market for them does not exist." In Mr. Dumler's case, there is not a labor market at all in my opinion which he can now access based on the chronic nature of his impairment and the severe limitations which have resulted from the injury. It is my professional opinion that William Dumler has been rendered unemployable, or has sustained 100 percent industrial disability as a result of the industrial accident of 8/29/06. It is my opinion that this condition is permanent and that vocational rehabilitation services will not be effective and will not change his unemployed status.

8 On November 14, 2008, Dr. Boese "adopt[ed] the restrictions provided in the [FCE] report." The deputy commissioner found "[t]he evidence of Dr. Boese, the claimant, and Dorothy Dumler provide convincing evidence that the claimant suffered an injury that arose out of and in the course of employment." The deputy found the hip injury"generally an injury to the body as a whole and not an injury to the lower extremity"resulted in Dumler's involuntary withdrawal from the labor market. The deputy also found the employer had failed to show any disability resulting from Dumler's preexisting conditions should be apportioned and concluded Dumler had suffered 100% industrial disability. awarded permanent total benefits. The deputy also found Dumler had established a prima facie of total disability by producing substantial evidence he was not employable in the competitive labor market, and Traco had failed to produce evidence of suitable employment. Consequently, the deputy also determined that Dumler was an odd-lot employee entitled to permanent total disability. The commissioner adopted the deputy's ruling on Traco's intra-agency appeal. Traco then filed a petition for judicial review. The district court reversed the award of permanent total disability benefits. The district court concluded, "There are no medical opinions supporting a causal relationship." The court wrote further: In light of the opinion of Dr. Boese that Claimant's current complaints and restrictions are not causally related to the alleged incident of 8/29/06, and the absence of any contrary opinion, the Court finds Claimant failed to meet his burden of proof as to the causal relationship between his current complaints and limitations The deputy

9 as a matter of law. The finding of the agency to the contrary is further unsupported by substantial evidence in the record. The district court noted Dr. Boese adopted the restrictions set out in the FCE, but stated that because "those restrictions stem from Claimant's preexisting degenerative back condition and are not related to the alleged work incident of 8/29/06." The court thus rejected the odd-lot employee finding of the

commissioner as well. While affirming the commissioner's finding that Dumler had sustained a work-related injury on August 29, 2006, the district court set aside the award of permanent total disability benefits. Dumler appeals, in essence contending the commissioner's findings were supported by substantial evidence and the district court erred in finding otherwise. On cross-appeal, Traco contends the district court erred in concluding there was substantial evidence to support the commissioner's finding that Dumler's hip injury arose out of and in the course of employment. II. Scope and Standard of Review. A district court reviews agency action pursuant to the Iowa Administrative Procedure Act. When we review a district court decision reviewing agency action, our task is to determine if we would reach the same result as the district court in our application of the Act. The district court may reverse or modify an agency's decision if the agency's decision is erroneous under a ground specified in the Act and a party's substantial rights have been prejudiced. The district court or an appellate court can only grant [petitioner] relief from the commissioner's decision if a determination of fact by the commissioner "is not supported by substantial evidence in the record before the court when that record is viewed as a whole." Arndt v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa 2007) (citations omitted).

10 III. Analysis. A. Work-related injury. We first address Traco's contention on crossappeal that there is not substantial evidence supporting the finding that Dumler sustained an injury on August 29, 2006. Traco relies heavily on the absence of any reference in Scarborough's August 31, 2006 medical notes that Dumler fell at work. We reject Traco's argument. "It is the commissioner's duty as the trier of fact to determine the credibility of the witnesses, weigh the evidence, and decide the facts in issue." Id. at 394

Download 0-892.pdf

Iowa Law