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IN THE COURT OF APPEALS OF IOWA No. 6-908 / 05-1963 Filed December 28, 2006

WILLIAM FLEMING, Petitioner-Appellant, vs. STIVERS DOWNTOWN LINCOLN-MERCURY AND FARM BUREAU INSURANCE, Respondents-Appellees ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

A worker compensation claimant appeals from the district court's judicial review of the agency decision regarding his claim. AFFIRMED.

Channing L. Dutton of Lawyer, Lawyer, Dutton & Drake, L.L.P., West Des Moines, for appellant. William D. Scherle and Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for appellee.

Heard by Huitink, P.J., and Zimmer, J., and Nelson, S.J.* Decided by Huitink, P.J., and Vogel, J., and Zimmer, J., and Nelson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 PER CURIAM William Fleming appeals from the district court's decision on judicial review of the Iowa Workers' Compensation Commissioner's (Commissioner) decision to deny him benefits. We agree with the district court that a finding of an aggravation injury is not supported by substantial evidence, but that the Commissioner's ultimate conclusion that Fleming failed to prove a permanent disability arising from a work-related injury is supported by the record. We affirm. I. Background Facts and Proceedings. At the time of the hearing before the commission, Fleming was fifty-nine years old and had worked as an auto mechanic for Stivers Lincoln-Mercury since 1985. He had smoked two packs of cigarettes a day since he was age 18, but quit smoking in 1991. During the winter of 1999 and early 2000, Fleming experienced symptoms including chest tightness, shortness of breath, and watering eyes. His family doctor, Gregory Ingle, D.O., initially suspected a heart attack or gastrointestinal acid reflux disease, but testing eliminated both. Fleming's symptoms abated until October 2000, when he was referred to a pulmonologist, Katrina Guest, M.D. In January 2001, Dr. Guest performed pulmonary function tests that showed a mild air flow obstruction. She initially believed Fleming suffered from "irritable airways probably sensitized to isocyanates or other components of the exposures at work." 1 A methacholine challenge test performed at this time was normal,

however. Following his return to work and the induction of another episode,

1

It was later determined that none of the chemicals to which Fleming may have been exposed at Stivers contained isocyanides.

3 additional pulmonary function tests performed by Dr. Guest had the same results as when Fleming was not experiencing symptoms. Fleming notified Stivers in January 2001 as to Dr. Guest's opinion. Fleming continued to work in the service department at Stivers, although a respirator was provided to him to minimize exposure to any chemicals. The respirator irritated Fleming's eyes and face, however, and an allergist treating him took Fleming off of work on March 7, 2001. He remained off work until June 2002 and received temporary total disability benefits from Stivers during that period. In January 2002, Stivers sent Fleming to a pulmonology clinic in Denver, Colorado where he was seen by Ronald Balkisson, M.D. Dr. Balkisson

conducted several tests, including blindfolded inhalation challenges to a number of chemicals Fleming identified as used by him at Stivers. The test results were essentially normal, with the exception of a mild vocal chord dysfunction, and another methacholine test showed normal airway response. Dr. Balkisson

believed that Fleming suffered from chronic bronchitis more probable than not caused by a history of cigarette smoking and workplace chemical exposure, stating "It is my impression that Mr. Fleming certainly has some irritant related sensitivity to the various chemicals that are used in his workplace, but it does not seem likely there is a true type I hypersensitivity or allergic response." He

attributed the vocal chord dysfunction to chemical exposure, acid reflux, and postnasal drip from rhinitis. He recommended Fleming be retrained or relocated to an area with minimal exposure to irritating chemicals. Fleming returned to work at Stivers in June 2002, with another respirator provided to him to reduce his exposure to the chemical irritants. The respirator

4 proved difficult to wear due to its size, weight, and the positions in which Fleming needed to be in to accomplish his work duties as an auto mechanic. Fleming's family physician, Dr. Ingle, advised him to discontinue using the respirator because of the impact on his neck and spine. Fleming permanently left

employment with Stivers on June 25, 2002, and filed a worker compensation claim the following March 2003. In preparation for hearing, another

pulmonologist and colleague of Dr. Guest, Dr. Gregory Hicklin, reviewed Fleming's records but did not physically examine him. Dr. Hicklin believed that Fleming's history of smoking and acid reflux disease contributed to his respiratory complaints and that Fleming suffered no permanent injury from chemical exposure at Stivers. Dr. Guest later indicated her agreement with Dr. Hicklin's conclusions, through correspondence and her sworn deposition in May 2004. She stated that Fleming suffered solely from an irritation that temporarily produces a response, but that he does not have a cumulative, compounded, or acute permanent injury consistent with sensitization that increase in response with each additional exposure. Dr. Guest also believed that Fleming's responses to smelling certain chemicals he associated with his symptoms were emotional or psychological responses consistent with his history of panic disorder, and again, not from any physiological changes in his lung function. The record does not reflect that Fleming was ever assigned a level of loss of function or disability, just that he was to avoid exposure to the chemical irritants. It was stipulated by the parties that at the time of his alleged injury, Fleming was grossing $658.00 per week, or a weekly net pay of $412.32. They also stipulated that Fleming received sixty-seven weeks of temporary total

5 disability benefits at the weekly rate of $412.32 from Stivers. Following a

contested hearing, the deputy commissioner found that the medical evidence showed Fleming's mild obstructive lung disease was more consistent with his chronic bronchitis and history of smoking. He also found more persuasive the medical testimony that Fleming's reactions were merely irritative or emotional responses, and not a cumulative sensitization that caused increased damage or loss of pulmonary function. Therefore, Fleming failed to establish that he

sustained a work-related permanent injury and was denied compensation for total permanent disability benefits. On intra-agency appeal, the Commissioner affirmed and adopted the arbitration decision's findings of fact and conclusions of law with a few modifications: (1) Fleming's irritation was an aggravation of a preexisting condition and therefore a compensable work injury regardless of the cause of the preexisting condition; but (2) Fleming still failed to show the aggravation injury caused any permanent disability, because Claimant argues that since this injury, he can never return to his chosen occupation, auto mechanic work, and therefor, he is entitled to permanent disability benefits. This is correct only if the claimant shows that his permanent restrictions are due to the injury and not the preexisting condition. Claimant argues in his brief that if he suffers a shoulder injury and is removed from a job requiring lifting 70 pounds because that type of lifting will increase his symptoms, he should be entitled to compensation for the loss of his job. He is correct if that injury, not a preexisting condition, caused the need to avoid lifting. If the shoulder condition was caused by a non-work related source, the loss of the job is not the result of the injury and is not compensated as a consequence of the injury. The fume irritations were not shown by the experts to have been caused by an allergy acquired at work or that the risk of future irritations was increased by these irritations. The loss of claimant's occupation is the result of his preexisting condition. He is no more impaired or disabled now than he was before the injury occurred. The only difference is that he now knows that his preexisting

6 condition makes that type of work unsuitable for him. In view of his preexisting condition it never was suitable for him. The injury led to the discovery of the unsuitability but the injury did not cause the unsuitability. Fleming then petitioned the district court for judicial review of the agency decision, arguing the Commissioner erred in failing to find permanent disability. Stivers argued on judicial review that the Commissioner erred in finding Fleming was injured. The district court reversed the Commissioner's finding that Fleming suffered an injury because of the lack of substantial evidence, but affirmed the finding that Fleming sustained no functional impairment for a permanent disability. Fleming now appeals from the decision on judicial review, contending the Commissioner's determination of an injury was supported by substantial evidence and because there was an injury with loss of earning capacity, benefits are due. II. Scope and Standards of Review. Our review of an industrial commissioner's decision is for correction of errors at law. Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999). In exercising its judicial review power of a final agency decision, the district court acts in an appellate capacity to correct any errors of law by the agency. Iowa Ag Const. Co., Inc. v. Iowa State Bd. of Tax Review, 723 N.W.2d 167, 172 (Iowa 2006). When we review the district court's decision, "we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court." Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004). "If they are the same, we affirm; otherwise we reverse." Id.

7 The Iowa Administrative Procedure Act, Iowa Code chapter 17A, governs the scope of our review in workers' compensation cases. Iowa Code

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