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IN THE COURT OF APPEALS OF IOWA No. 8-330 / 07-1212 Filed October 1, 2008

WOODBURY COUNTY, IOWA, Plaintiff-Appellant, vs. BECKY CLAUSEN, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, Judge.

Employer appeals an agency's denial of the employer's review-reopening petition for a workers' compensation claim. AFFIRMED.

Sharese Manker and Rene Lapierre of Klass Law Firm, L.L.P., Sioux City, for appellant. William Horneber of Horneber Law Firm, Sioux City, for appellee.

Heard by Mahan, P.J., and Vaitheswaran and Doyle, JJ.

2 VAITHESWARAN, J. The workers' compensation commissioner affirmed the dismissal of a review-reopening petition filed by an employer. Like the district court, we affirm the agency decision. I. Background Facts and Proceedings Becky Clausen sought workers' compensation benefits after experiencing a reaction to new carpet at the workplace. In 2001, a deputy workers'

compensation commissioner concluded that a psychological disorder, rather than an allergic reaction, entitled her to permanent total disability benefits. The county asked to submit additional evidence in the form of a psychiatric opinion from Dr. Eli Chesen. The commissioner denied that request. The county then filed a review-reopening petition alleging that Clausen's benefits should be terminated on the basis of Dr. Chesen's opinion that Clausen sustained "no disability beyond a few hours after her exposure." A day after the petition was filed, the

commissioner affirmed the deputy commissioner's decision that Clausen was entitled to permanent total disability benefits. The county sought judicial review and both the district court and this court affirmed the agency decision. See

Woodbury County v. Clausen, No. 02-1347 2003, WL 21230543 (Iowa Ct. App. May 29, 2003). The county's review-reopening petition proceeded to a hearing. A deputy commissioner concluded that the county failed to establish a "change in the claimant's medical condition following the arbitration decision in this case." On intra-agency appeal, the commissioner affirmed the deputy, concluding the

3 psychiatrist's views "were clearly offered to re-litigate the issues addressed in the 2001 arbitration decision and subsequent appellate decisions." The county again sought judicial review. The district court affirmed the final agency decision and the county appealed. II. Analysis A. Request for Termination of Benefits Iowa Code section 86.14(2) (2005) sets forth the parameters of a reviewreopening proceeding. It states: In a proceeding to reopen an award for payments or agreement for settlement as provided by section 86.13, inquiry shall be into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation so awarded or agreed upon. The county concedes it had the burden of proving that Clausen's benefits should be terminated. To satisfy this burden, the county had to establish an increase in Clausen's earning capacity proximately caused by the original injury. See

Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999). The commissioner found that Clausen's earning capacity did not increase. The

decisive question for us is whether that finding is supported by substantial evidence. Id. at 435. The county cites the following evidence in support of its contention that the agency finding is not supported by substantial evidence: (1) Clausen's success in maintaining employment following her termination by the county; (2) two car accidents after Clausen's termination by the county; (3) an allergist's opinion that Clausen had no work restrictions; (4) a suggestion in the notes of Clausen's

4 counselor that her condition was improving; and (5) the opinion of Dr. Chesen, that Clausen was not restricted from returning to work. We begin with Clausen's post-termination employment history. At the

original arbitration hearing, the deputy commissioner considered evidence that Clausen had been employed. The deputy commissioner and commissioner still decided to award permanent total disability benefits. At the hearing on the

county's review-reopening petition, the deputy commissioner again considered evidence that Clausen had sporadic, short-term employment. The deputy

commissioner and commissioner found that this evidence did not warrant the termination of benefits. In its final review-reopening decision, the commissioner stated, "Evidence that claimant has earned some nominal income (the highest being less than $7,000 in 2002) during 2000-2002 is far from a showing that she has returned to gainful employment in the competitive labor market." That

determination is supported by substantial evidence and is consistent with the law. As the county concedes, "[t]otal disability does not mean a state of absolute helplessness." IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 633 (Iowa 2000). We turn to the record evidence of two accidents involving Clausen following her termination by the county. The county does not explain how these accidents improved Clausen's earning capacity relative to the psychological injury. See Simonson, 588 N.W.2d at 435 (noting reduction of earning capacity based on circumstances "wholly unrelated to" work injury not grounds for change in compensation). Accordingly, the evidence does not support reversal. Next is evidence that Clausen saw an allergist who did not place any restrictions on her ability to work. While this evidence might have been relevant

5 if Clausen's injury had been deemed physiological, it had no bearing on the psychological injury Clausen was found to have sustained. Id. The fourth piece of evidence cited by the county is a statement in the notes of Clausen's counselor that her condition was improving. This evidence cannot be viewed in a vacuum. See Iowa Code

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