Armstrong v. State of Iowa Bldgs. and Grounds, 85-345

• Decision Date: 19 February 1986
• Docket Number: No. 85-345,85-345
• Citation: 382 N.W.2d 161
• Parties: George ARMSTRONG, Appellant, v. STATE OF IOWA BUILDINGS AND GROUNDS and State of Iowa, Appellees.
• Court: Iowa Supreme Court

Page 161

382 N.W.2d 161

George ARMSTRONG, Appellant, v. STATE OF IOWA BUILDINGS AND GROUNDS and State of Iowa, Appellees.

No. 85-345.

Supreme Court of Iowa.

Feb. 19, 1986.

Dennis L. Hanssen, of Hopkins & Huebner, P.C., Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., and James M. Peters, Asst. Atty. Gen., for appellees.

Considered en banc.

SCHULTZ, Justice.

The dispute in this workers' compensation appeal relates to the amount of permanent disability the worker sustained. The industrial commissioner's representative (commissioner) awarded the worker a 10 percent permanent partial disability; however, on judicial review the district court raised the amount to 50 percent. On appeal the worker claims the district court erred in not recognizing total permanent disability, while the employer maintains the district court erroneously modified the commissioner's award. We conclude there is substantial evidence in the record to support the commissioner's decision.

The worker, George Armstrong, was employed by the State of Iowa Buildings and Grounds (employer) as a custodian on January 31, 1977. His duties required that he perform a substantial amount of physical labor. On July 26, 1978, the worker suffered abdominal pains while lifting a bucket of water in the course of his employment. Thereafter, on August 7, 1978, the worker had surgery performed to repair bilateral inguinal hernias. He was released to return to work on October 9, 1978, and did so, working for two days. The worker testified that upon returning to work he was ordered to lift some chairs and he refused, telling his supervisor that he could not bend over. He left work on October 10 and did not return.

Sometime after leaving his employment the worker was examined by his treating physician. Thereafter, he was examined, in turn, by another physician, an internist, an orthopedic surgeon, a urologist, a general surgeon, a psychologist and a psychiatrist. He was also treated at a local hospital and the Veteran's Administration Hospital. The results of all these examinations were essentially negative as to any job-related physical injury, but there were some indications of a possible job-related mental injury.

During the course of these examinations the worker complained of pressure over his hernia operation incision, leg pains, inability to bend or lift, and inability to work. On October 24, 1978, the treating physician and surgeon reexamined the worker and found no reoccurrence of the hernias. Some eleven months later, a urologist discovered a cancerous tumor on the worker's bladder that he promptly had removed. The worker was released with no urological disability. Still complaining of pain in his lower extremities, the worker was examined by Todd Hines, Ph.D., a psychologist, on February 29, March 5 and March 10, 1980. Following psychological testing, Dr. Hines surmised that psychological factors likely constituted a major source of the worker's symptom production and exacerbation. He believed that a somatic conversion process had created the worker's present chronic pain and symptoms. Dr. Hines concluded that the worker was "completely disabled as a function of the interaction of physiological and psychological factors precipitated by the July 26, 1978, accident."

In May of 1980 the worker was examined at the psychiatric clinic of the University of Iowa Hospitals and Clinics by Remi Jere Cadoret, M.D., a professor of psychiatry at the University. A family practice resident assisted Dr. Cadoret in this evaluation. Dr. Cadoret defined traumatic stress disorder as a development of symptoms following a psychologically traumatic event that is generally outside the range of usual human experience. He opined there was no traumatic neurosis present in the worker's case because the triggering event was not of significant trauma. Dr. Cadoret found that the worker suffered from some psychological problems that were consistent with alcoholism. However, he indicated that the worker's alcoholism was not caused by his work-related injury. Dr. Cadoret believed that although some of the worker's complaints could be due to his work-related injury, much of his pain and reaction to it was related to the worker's bladder cancer and concern about the cancer spreading. Dr. Cadoret stated that it was impossible to answer the question of whether the worker suffered any functional impairment from his work injury. Dr Cadoret generally disagreed with Dr. Hines' diagnosis of somatic conversion and concluded that the worker was suffering from a low level anxiety.

The worker first applied for workers' compensation benefits and filed a report of injury on August 31, 1978. He was paid weekly compensation arising from the events concerning the hernia surgery. On October 17, 1979, the worker then sought a review-reopening hearing, claiming that he was totally disabled. The hearing was held before a deputy industrial commissioner who determined that the worker sustained a 10 percent permanent partial disability because of a mental condition which arose out of his job-related injury on July 26, 1978. On July 15, 1981, in an appeal within the agency, the commissioner affirmed this determination. The commissioner detailed some seventeen findings of fact before concluding that the worker's mental condition entitled him to a 10 percent permanent partial industrial disability.

Thereafter, the worker filed a petition for judicial review and the district court remanded for further findings and conclusions regarding the extent of the worker's permanent disability. The reviewing court indicated that the agency's reliance on Dr. Cadoret's evaluation of a low level anxiety, standing alone, was insufficient to support such a minimal disability finding and that criteria set out in McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980), for evaluating industrial disability needed to be considered. On remand, the commissioner indicated that his affirmance of the deputy industrial commissioner's award "was thought to be a liberal allowance, giving due significance to that deputy's first-hand hearing of the case." The commissioner then evaluated Dr. Cadoret's testimony in more detail and noted there was no exacting formula that is applied for assessing industrial disability. The commissioner concluded that his original rating of 10 percent permanent partial disability was correct.

On further judicial review the district court again remanded; however, in its decision the court acknowledged that it was within the commissioner's prerogative to rely upon Dr. Cadoret's testimony. The court requested the commissioner further evaluate the industrial disability award and specifically requested that the commissioner examine the factors set out in McSpadden in more detail. Moreover, the court noted that the effect of the worker's inability to engage in other employment and whether the employer refused to provide him work had not been scrutinized.

In its second remand decision the commissioner examined the worker's age, education and history of being able to find numerous jobs before concluding that the impairment was not great and should not have materially diminished the worker's ability to secure employment. Additionally, the commissioner reviewed the evidence regarding the employer's refusal to provide any work and the worker's effort to seek other employment. The commissioner concluded "[t]here may have been a refusal to re-employ claimant in his former capacity (which he claims he could not do anyway), but the evidence does not show a refusal to provide other forms of work." Concerning his effort to seek other work, the commissioner noted "[t]his question is somewhat tied to the first one, the one concerning claimant's ability to work. With strict respect to his looking for other work, the record seems void of any such evidence." The commissioner reviewed the matters brought out in cross-examination of the worker at the reopening hearing and concluded that the evidence "does not show any effort on the part of the worker to find other work."

In its ruling on the worker's third petition for judicial review, the basis for the present appeal, the district court determined there was insufficient evidence in the record to support the commissioner's findings concerning the worker's inability to work. The court also concluded that there was not substantial evidence to support the commissioner's conclusion that the worker had a "low level anxiety" which did not produce an industrial disability beyond 10 percent. The court went on to make its own fact-finding and determined that the worker had a 50 percent permanent partial disability. It remanded the case to the agency for the limited purpose of computation and payment of benefits.

Each party is dissatisfied with this judicial review decision. The worker maintains the court should have ruled that he had a total permanent disability because he claims that such disability was established, as a matter of law, at the review-reopening hearing. The employer insists that the court erred when it decided that the 10 percent rating was not supported by substantial evidence. Moreover, the employer contends that even if the trial court correctly decided that the 10 percent award was not supported by substantial evidence, the court should have remanded the case to the agency instead of modifying the commissioner's disability rating.

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