Case Number: 3-540 / 02-1885

Judge: Miller

Court: Court of Appeals of Iowa

Plaintiff's Attorney:

thia Scherrman Sueppel of Moyer & Bergman, P.L.C., Cedar Rapids, Iowa for appellant.

Defendant's Attorney:

James Peters and Elizabeth Croco of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellees.

Description:

Gregory J. Hughes appeals the district court's decision on judicial review affirming the workers' compensation commissioner's decision finding he failed to prove that the probable cause of his shoulder condition was his work. He contends the district court erred in upholding the agency decision because the court failed to properly consider all of the evidence in the record. We affirm.

Hughes began working for his employer Quaker Oats Company in 1975 and has worked there continuously through the present with the exception of one year. In March of 1996 Hughes was working as a sweeper at Quaker Oats. However, he was moved fairly frequently from the sweeper position to work as a package palletizer operator (PPO). Hughes sought chiropractic treatment for shoulder pain in June 1991 but indicates he first noticed shoulder problems on a consistent basis in March of 1996 during the time he was performing PPO duties on a regular basis. The PPO position became automated in 1997, at which time Hughes's duties as a PPO worker ended. Hughes apparently continued to have shoulder pain after his PPO work ended. He has received numerous treatments from several different medical providers for his shoulder problems and has undergone surgery for such problems. Hughes asserts he began suffering shoulder pain as a result of the repetitive nature of his PPO work and his shoulder problems are a result of that work.

The record further shows that Hughes was a very physically active person. He had been involved in tae kwon do since 1973, both competing and teaching at various times throughout this period. In addition, from 1992 to 1997 he was involved in the demolition and remodeling of a building for a tae kwon do school

Hughes filed two workers' compensation claims against Quaker Oats for injures he alleges he suffered to his left shoulder due to his PPO work. His first petition alleges a cumulative trauma injury to his left shoulder on March 11, 1996. The second petition alleges a cumulative trauma to his left shoulder based on the arthroscopic surgery Hughes underwent for his shoulder on January 26, 2000, which is also the first date he missed work due to his alleged work-related injury.

A hearing was held before a deputy workers' compensation commissioner. In a very thorough and detailed decision, in which the deputy correctly stated relevant law and noted all of the physicians who had either treated or evaluated Hughes's condition and their various opinions, the deputy found that Hughes failed to carry his burden of proof to establish he had sustained a cumulative injury to his left shoulder arising out of and in the course of his employment at Quaker Oats.

Hughes timely appealed the deputy's decision to the Iowa Workers' Compensation Commissioner. In another detailed and thorough decision Chief Deputy Cramer affirmed the deputy's denial of Hughes's compensation claim for his left shoulder.[1] The chief deputy concluded,

While it is possible that claimant's work may have been the cause of his shoulder condition, claimant must prove that the probable cause was his work. Claimant has not proved that the probable cause of his shoulder condition was his work. Claimant has failed to prove he suffered a cumulative injury to this left shoulder on either of the alleged injury dates.

Hughes filed a petition for judicial review of this final agency action. The district court determined there was substantial evidence in the record to support the agency's determination that Hughes failed to prove the probable cause of his shoulder condition was his work. The court further found the rulings of the deputy and the chief deputy to be very detailed and that they adequately addressed the facts and arguments put forth by the parties. Hughes appeals from the district court's decision.

On appeal Hughes contends both the agency and the district court failed to properly consider all of the evidence in the record. More specifically he alleges: there is a considerable amount of evidence which the agency completely failed to address and acknowledge, and which detracts from the agency finding that Hughes's injury is not compensable; the district court's decision failed to review and acknowledge important evidence; the district court incorrectly found that the doctors' opinions varied; and both the agency and the court disregarded and misinterpreted the medical opinions regarding causation and if such evidence were to be given proper consideration it is clear he has established causation between his work at Quaker Oats and the injury to his left shoulder.

Our review of a final agency decision, like that of the district court, is for correction of errors of law. Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). The agency's findings are akin to a jury verdict, and we broadly apply them to uphold the agency decision. Id. If the agency's findings of fact are supported by substantial evidence, those findings are binding on us. City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 536 (Iowa 1996).

[E]vidence is not insubstantial merely because it would have supported contrary inferences. Nor is evidence insubstantial because of the possibility of drawing two inconsistent conclusions from it. The ultimate question is not whether the evidence supports a different finding but whether the evidence supports the findings actually made.

Id.

A claimant seeking workers' compensation benefits has the burden of proving by a preponderance of the evidence that the injury on which he or she bases the claim arose out of and in the course of the claimant's employment. St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 652 (Iowa 2000). A possibility of causation is not sufficient; a probability is necessary. Kostelac v. Feldman's Inc., 497 N.W.2d 853, 856 (Iowa 1993); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154, 156 (Iowa Ct. App. 1997). Factual or medical causation presents an issue of fact. Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995). The question of causal connection is essentially within the domain of expert testimony. Id. The commissioner is free to accept or reject, in whole or in part, expert testimony even if uncontroverted. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974); Prewitt v. Firestone Tire & Rubber Co., 564 N.W.2d 852, 855 (Iowa Ct. App. 1997).

It is clear from the record that the expert testimony regarding causation was conflicting, and some expert opinion supporting a causal connection was equivocal. However, it is equally clear all such evidence was before the agency and given full consideration by it. Furthermore, it is noteworthy that we can find no evidence from any of the medical experts in the record before us that clearly and strongly expresses an opinion that Hughes's shoulder injury was in fact caused by his work at Quaker Oats.

When the record is viewed as a whole, there is substantial evidence to support the chief deputy's determination that Hughes failed to carry his burden to prove by a preponderance of the evidence that his left shoulder injury was causally related to his PPO work at Quaker Oats. The agency's decision does not lack substantial evidential support merely because inconsistent conclusions could be drawn from the evidence. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). The ultimate question is not whether the evidence would support a different finding, but whether it supports the finding the commissioner actually made. Id.

Based on our review of the evidence in the record as a whole, we agree with the conclusions of the district court that substantial evidence in the record supports the agency's determination that although it is possible Hughes's work may have caused his shoulder condition, he did not meet his burden to prove that his work for Quaker Oats was the probable cause of such injury.

Outcome: Affirmed

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None