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IN THE COURT OF APPEALS OF IOWA

No. 2-261 / 01-1854

Filed September 25, 2002

MIDAMERICAN ENERGY COMPANY,

Petitioner-Appellant,

vs.

THOMAS BOWLIN,

Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

MidAmerican Energy Company appeals from the district court's ruling on judicial review affirming a workers' compensation award to Thomas Bowlin. AFFIRMED.

Lori A. Brandau and D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellant.

Thomas J. Reilly of Thomas J. Reilly Law Firm, P.C., Des Moines, for appellee.

Heard by Sackett, C.J., and Vogel and Mahan, JJ.


MAHAN, J.

MidAmerican Energy Company appeals from the district court's ruling on judicial review affirming a workers' compensation award to Thomas Bowlin. MidAmerican claims: (1) Bowlin's condition was caused by an April 1995 motor vehicle accident, not subsequent work-related incidents; (2) the workers' compensation commissioner awarded Bowlin excessive benefits; (3)MidAmerican has an indemnity interest in a settlement award Bowlin received after the April 1995 accident; and (4) excess benefits should be credited against MidAmerican's liability for future benefits. We affirm.

I. Background Facts

Bowlin was previously employed by MidAmerican as a line crew foreman. On April 8, 1995, Bowlin was in a motor vehicle accident while driving a company truck. He received a "whiplash-type injury," but did not receive any workers' compensation benefits and shortly thereafter returned to work with no restrictions. He had intermittent back pain, but was able to complete his job duties.[1] Bowlin filed suit against the driver of the other car and subsequently settled the case for $50,000.

On June 30, 1997, Bowlin was climbing out of a hole when he experienced severe back pain. Dr. Daniel McGuire determined Bowlin had severe degenerative disc disease, which was exacerbated by the June 1997 incident. Bowlin had back surgery in September 1997. He returned to work in March 1998 on a modified schedule, where he worked as a line crew foreman for four hours per day, and had restricted duties for four hours per day. In addition, Bowlin was placed on work restrictions regarding the amount he could lift and was told to avoid repetitive twisting and walking on uneven ground.

On April 3, 1998, Bowlin was digging a hole and scooping mud, when he injured his neck. He had surgery on his neck in June 1998. Bowlin was placed on further restrictions regarding the amount he could lift and was told to avoid overhead work and tools that vibrate. Dr. McGuire advised Bowlin not to return to his job as a line crew foreman because of the physical demands of that job. Bowlin bid into the job of storeperson, which caused a reduction in his pay.

II. Proceedings Below

Bowlin filed claims for workers' compensation benefits for the April 1995, June 1997, and April 1998 incidents. After a hearing, a deputy workers' compensation commissioner determined Bowlin was not entitled to an industrial disability rating for the April 1995 injury because he received no permanent injury. The deputy found Bowlin's condition was due entirely to the latter two incidents. The deputy noted:

Dr. McGuire has provided numerous opinions regarding the incident of June 30, 1997. All are consistent, and indicate that although claimant had preexisting conditions in his back, the incident at work on June 30, 1997 aggravated the condition so that claimant had to undergo extensive medical treatment to be functional.

The deputy reviewed the applicable factors, including Bowlin's age, work history, and education, and concluded Bowlin had a fifty-percent industrial disability due to the June 1997 incident, and an additional twenty-five-percent industrial disability due to the April 1998 incident.

The deputy's decision on these issues was upheld by the chief deputy workers' compensation commissioner. On judicial review, the district court affirmed the commissioner. MidAmerican appeals.

III. Scope of Review

An appeal of a district court's ruling on judicial review of an agency's decision is limited to determining whether the district court correctly applied the law in exercising its judicial review function under Iowa Code section 17A.19(8) (1999). Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001). The district court, as well as this court, is bound by the commissioner's factual findings if they are supported by substantial evidence in the record. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). Evidence is substantial when a reasonable mind would accept it as adequate to reach the commissioner's conclusions. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). Evidence may be substantial even if it would support contrary findings. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999).

IV. April 1995 Accident

MidAmerican contends Bowlin's condition is the result of the April 1995 motor vehicle accident, and that the other two incidents were merely aggravations of the original injury. It asserts that at the time of his lawsuit against the driver of the other vehicle, Bowlin claimed his medical condition was the result of the April 1995 accident. Regarding Bowlin's arguments in the workers' compensation proceedings, MidAmerican claims Bowlin is attempting to manipulate the workers' compensation system, and points out that if Bowlin's condition is found to be the result of the latter two injuries, he will receive a greater weekly rate of compensation than if his injury is found to be the result of the April 1995 injury.

MidAmerican relies upon Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 442 (Iowa 1990), which involved an employee who was first injured in 1985 and claimed a subsequent cumulative injury. The supreme court affirmed the commissioner's conclusion that the evidence revealed a subsequent aggravation of the employee's injury, but not a distinct and discreet cumulative injury which would give the employee a later date of injury for purposes of determining the rate of compensation. Ellingson, 599 N.W.2d at 444. We find Ellingson to be factually distinguishable from the present case. In that case, the employee never returned to full duty after her 1985 injury and the treating physician opined that the employee's ongoing condition had its origins in the 1985 incident. Id.

We find there is substantial evidence in the record to support the commissioner's conclusion Bowlin suffered distinct and discreet injuries subsequent to the April 1995 motor vehicle accident. Here, Bowlin worked full-time and had no restrictions prior to the June 1997 incident. Furthermore, the treating physician in this case, Dr. McGuire, gave the opinion the June 1997 incident caused Bowlin to require extensive medical treatment and the April 1998 incident caused him to require neck surgery. After these two incidents Bowlin was not able to return to his job as line crew foreman. Due to work restrictions, he took a job as a storeperson at a reduced rate of pay. The commissioner considered the opinions of doctors hired by MidAmerican, but found the opinions of these doctors did not comport with the other evidence in the file. The commissioner concluded Dr. McGuire was more persuasive. We affirm the commissioner's conclusion Bowlin's reduced earning capacity was caused by the June 1997 and April 1998 incidents rather than the April 1995 incident.

V. Industrial Disability

MidAmerican claims the district court erred in finding there was substantial evidence in the record to support the commissioner's industrial disability ratings for Bowlin. It asserts Bowlin is qualified for several positions, even considering his work restrictions.

In determining industrial disability, the commissioner considers the employee's functional impairment, age, intelligence, education, qualifications, experience, and the ability of the employee to engage in employment for which he or she is suited. Second Injury Fund v. Nelson, 544 N.W.2d 258, 265-66 (Iowa 1995). A showing of actual diminution in earnings is not necessary to demonstrate an injury-induced reduction in earning capacity. Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 831 (Iowa 1992). The commissioner's decision regarding a disability rating must be affirmed if it is supported by substantial evidence. Cargill, Inc. v. Conley, 620 N.W.2d 496, 502 (Iowa 2000).

We find there is substantial evidence in the record to support the commissioner's decisions regarding Bowlin's industrial disability ratings. The commissioner carefully considered each of the applicable factors in making its determination. Bowlin was fifty-one years old, had worked at MidAmerican since 1972, and had completed one year of college more than twenty years ago. He completed journeyman electrical courses, but could no longer work in this field due to his work restrictions and impairments.

MidAmerican also claims the commissioner improperly applied the full responsibility rule. The district court did not rule on this issue, and MidAmerican did not file a posttrial motion. In order to preserve error, a party seeking to appeal an issue presented to, but not decided by, the district court, must call the district court's attention to the issue. Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002). We determine error was not preserved on this issue.

VI. Credits

MidAmerican contends it is entitled to a credit against the proceeds Bowlin received in his tort suit. It also contends it is entitled to a credit against any excess benefits potentially paid to Bowlin. Both of these claims are based on MidAmerican's argument Bowlin's benefits should be based solely on the April 1995 incident. This argument has been rejected, and we find MidAmerican is not entitled to any additional credits.

We affirm the decision of the district court and the workers' compensation commissioner.

AFFIRMED.

Vogel, J., concurs; Sackett, C.J., concurs specially.


SACKETT, C.J. (concurring specially)

I concur in the result, based on our limited scope of review. I write separately to express my displeasure with Bowlin’s duplicitous approach to the proceedings arising from his injuries. In a deposition in his civil suit against the driver who rear ended his truck in 1995, Bowlin repeatedly attributed all his back and neck problems to the 1995 motor vehicle accident. I note this deposition was taken in September 1998, after the 1997 and 1998 incidents Bowlin now claims are the cause of his back and neck problems in the workers’ compensation proceeding before us.

Bowlin stated under oath he suffered an immediate stabbing pain in his neck after the accident. Within a few days, he also experienced middle and lower back pains from the accident. The pain radiated down to his knee and out to his shoulder and arms. He also attributed chest pains radiating around from the back and deep pain in his right hip to the 1995 accident. In a September 1998 demand letter in the civil suit, Bowlin’s attorney listed damages including medical bills, workers’ compensation, and future economic losses totaling over $816,000 all as being attributable to the 1995 motor vehicle accident. In addition, Bowlin noted on the 1997 personal injury accident report that the “primary cause” of the accident was an “old injury from traffic accident back in May, 1995.” In the space for comments on the form appears the notation, “This accident or injury is a result from a previous injury, from a traffic accident back in May of 1995.”

In contrast, in the combined workers’ compensation proceedings, Bowlin attributed his current neck and back pain to incidents at work in 1997 and early 1998. When asked in the hearing before the workers’ compensation commissioner about whether the claim in the demand letter was that all the expenses were related to the 1995 accident, Bowlin agreed. When asked if he still felt that way, he said, “No, I still believe the ’97 injury had a lot to do with my back.” Bowlin testified that between the 1995 accident and the 1997 incident at work, he continued to have back problems “on and off” which caused him to change the way he did things at home because strenuous activity would cause flare-ups. In a 1997 letter to MidAmerican before the 1997 incident, Bowlin’s attorney stated Bowlin continued to receive treatment for chronic back symptoms and that back surgery in the near future was probable.

Our review of workers’ compensation proceedings is limited. Iowa Code § 17A.19. The agency’s findings of fact are binding on us if supported by substantial evidence. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). Evidence is substantial when a reasonable mind would accept it as adequate to reach the same conclusion. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). Evidence may be substantial even if it would support contrary findings. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). The agency not the court weighs the evidence, and we are obliged to apply those findings broadly and liberally to uphold rather than defeat the agency's decision. Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 436 (Iowa 1997). On review, the question is not whether the evidence supports a finding different from the commissioner's but whether the evidence supports the findings the commissioner actually made. Ward v. Iowa Dep't of Transp., 304 N.W.2d 236, 238 (Iowa 1981). In other words, the commissioner's findings are binding on appeal unless a contrary result is compelled as a matter of law. Id.

The evidence in this case supports a finding contrary to that made by the commissioner. It does not, however, rise to the level of compelling a contrary finding as a matter of law. Therefore, I am forced to agree with the majority that substantial evidence supports the agency’s findings, so we must affirm.

[1] Bowlin was injured at work on February 22, 1996, when he exited a hole where he was splicing cable. He received no workers' compensation benefits, and again returned to full duty work. This incident is not part of the parties' appeal.