Davidson v. Bruce, 97-1895

• Decision Date: 31 March 1999
• Docket Number: No. 97-1895,97-1895
• Citation: 594 N.W.2d 833
• Parties: Jeffrey D. DAVIDSON, Appellant, v. David BRUCE and Estate of Keith Bruce, d/b/a Bruce Feedlot and Wausau Insurance Companies, Appellees.
• Court: Iowa Court of Appeals

Page 833

594 N.W.2d 833

Jeffrey D. DAVIDSON, Appellant, v. David BRUCE and Estate of Keith Bruce, d/b/a Bruce Feedlot and Wausau Insurance Companies, Appellees.

No. 97-1895.

Court of Appeals of Iowa.

March 31, 1999.

Mark S. Soldat, Algona, for appellant.

Matthew A. Grotnes of Hopkins & Huebner, P.C., Des Moines, for appellees.

Heard by HUITINK, P.J., and VOGEL and ZIMMER, JJ.

VOGEL, J.

Jeffrey Davidson appeals the district court ruling entered on his petition for judicial review of a decision by the Industrial Commissioner on his claim for worker's compensation benefits. We affirm.

Background facts. In 1986, Davidson was hired to perform manual labor in a cattle feeding operation known as Bruce Feed Lot. On October 29, 1990, Davidson was loading cattle into a trailer when he was kicked and knocked unconscious. He suffered a comminuted fracture to his left arm and underwent six surgeries to repair the damage, clean and irrigate infections, and release a trapped nerve. Davidson returned to work full-time on July 19, 1991. On November 11, 1992, Davidson's doctor, Dr. Ronald Miller, determined that Davidson had reached maximum healing.

On February 8, 1993, Wausau Insurance Companies, Bruce Feed Lot's workers' compensation carrier, wrote to Dr. Miller requesting a disability rating for Davidson. On February 22, 1993, Dr. Miller informed Wausau that Davidson's permanent impairment was 25% of the left arm. Using this rating, Wausau calculated that Davidson was entitled to 62 1/2 weeks of disability at a rate of $263.46 per week, or $16,466.25. Davidson received his first permanent partial disability payment on March 18, 1993. ¹

Davidson filed a petition before the industrial commissioner on January 11, 1995. A deputy industrial commissioner awarded Davidson only what Wausau had already paid and ordered him to pay the costs of the action. Davidson appealed. The Industrial Commissioner imposed penalties upon Wausau for delays in payment and taxed costs to Wausau, but otherwise adopted the deputy's decision. Upon rehearing, the Commissioner modified her order to clarify a number of points, awarded Davidson an additional $255.67 in temporary partial disability benefits and penalized Wausau for the underpayment.

Davidson then petitioned for judicial review. The district court affirmed in part, and reversed and remanded in part. Davidson now appeals.

Scope of review. We review district court decisions regarding the validity of agency actions for correction of errors at law. U.S. West Communications, Inc. v. Overholser, 566 N.W.2d 873, 875 (Iowa 1997) (citations omitted). In determining whether the law has been correctly applied, we give weight to the Commissioner's interpretation of the relevant statutory provisions, but are not bound by it. See Second Injury Fund v. Klebs, 539 N.W.2d 178, 180 (Iowa 1995). We are bound by the Commissioner's factual findings if they are supported by substantial evidence in the record. See Id.

I. Impairment rating. Davidson first contends the district court erred in affirming the Commissioner's determination that he was not entitled to permanent partial disability benefits at an increased rating. He asserts the Commissioner merely accepted the rating given by Dr. Miller based on the A.M.A. Guides to the Evaluation of Permanent Impairment and ignored relevant lay testimony.

Iowa Code section 85.34 provides for permanent partial disability compensation for the loss of a scheduled member. The Commissioner is required to consider both medical and nonmedical evidence. See Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 421 (Iowa 1994). Lay testimony can buttress the medical testimony and be relevant and material in determining the cause and extent of an employee's injuries. See Id. When relying on medical evidence, the Commissioner may use the A.M.A. Guides for determining the disability of a scheduled member. See Sherman v. Pella Corp., 576 N.W.2d 312, 322 (Iowa 1998) (citing Iowa Admin. Code r. 343-2.4).

Dr. Miller was the only medical expert who testified at Davidson's hearing. Davidson did not present any additional expert medical evidence, but instead called five lay witnesses to testify as to the extent of his impairment. In her ruling, the Commissioner noted that each of the lay witnesses was related to Davidson and found that none of their testimony was "particularly persuasive." She concluded:

Dr. Miller has determined that claimant has a 25 percent impairment rating per the AMA Guides to the Evaluation of Permanent Impairment. His rating did not consider the pain that claimant was in but did include loss of range of motion, severity of the fracture, muscle atrophy, and the radial nerve injury. After considering all of the lay evidence, the undersigned has concluded that the best and most accurate evaluation of the loss of use or impairment of claimant's arm has been provided by Dr. Miller, claimant's primary treating physician. Claimant is currently able to use his arm to do all of the functions of his job which is as strenuous as the job he was performing at the time of his injury.

We find no legal error in the Commissioner's application of the law as she considered all relevant evidence, both lay and expert testimony, in determining Davidson's impairment. The weight the Commissioner gave to the testimony was incorporated into the findings. In our 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. See Long v. Roberts Dairy Co., 528 N.W.2d 122, 123 (Iowa 1995) (citing Ward v. Iowa Dep't of Transp., 304 N.W.2d 236, 237 (Iowa 1981)). The commissioner's findings are binding on appeal unless a contrary result is compelled as a matter of law. See Id. After reviewing the record, we conclude that substantial evidence supports the impairment rating as determined by the Commissioner.

II. Interest. Davidson next contends that the district court erred in affirming the Commissioner's determination that interest under Iowa Code section 85.30 is not compounded into principal.

Iowa Code section 85.30 provides that:

Compensation payments shall be made each week beginning on the eleventh day after the injury, and each week thereafter during the period for which compensation is payable, and if not paid when due, there shall be added to the weekly compensation payments, interest at the rate provided in section 535.3 for court judgments and decrees. ²

Davidson urges that section 85.30 must be interpreted to allow compounded interest on past due compensation payments. We disagree with this interpretation. "The general rule in the United States is that, when interest is allowable, it is to be computed on a simple rather than a compound basis in the absence of express authorization to the contrary." Landals v. George A. Rolfes Co., 454 N.W.2d 891, 896 (Iowa 1990). We therefore affirm the district court and Industrial Commissioner's determination of this issue.

III. Penalties. Davidson asserts the district court erred in ruling on several penalty issues.

a. Section 86.13 penalty benefits. The Industrial Commissioner originally awarded Davidson a penalty of "25 percent of the permanent partial disability benefits accruing between November 11, 1992 and February 22, 1993,"and a penalty of 10 percent of the permanent partial disability benefits accruing between February 22, 1993 and March 8, 1993. In its application for rehearing, Davidson pointed out that there were no benefits "accruing" during those periods; rather, the payments had already accrued and were in fact overdue. After rehearing, the Commissioner changed her order to award Davidson, "25 percent of the benefits that should have been paid to claimant during the three month unexcused delay," and "10 percent of the benefits that should have been paid to claimant during the three week unexcused delay."

The district court interpreted this language to mean that Davidson should receive a percentage of the benefits that should have been paid during those specified periods (25% X weekly rate X 12 weeks + 10% X weekly rate X 3 weeks). Davidson contends that the district court erred in its interpretation and/or in not remanding the issue to the commissioner for further clarification. Davidson argues that he should have been awarded as a penalty 25% plus 10% of $16,484.96, the entire amount of permanent partial disability compensation.

Iowa Code section 86.13 provides, in relevant part:

If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied.

In determining the amount of penalty, the Commissioner is to consider factors such as the length of the delay, the number of delays, the information available to the employer regarding the employee's injury and wages, and the employer's past record of penalties. See Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 238 (Iowa 1996); see also Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 19 n. 2 (Iowa 1997) ("Case law does not indicate how the industrial commissioner is to compute penalty benefits. It is unclear whether the commissioner calculates them as a percentage of permanency benefits or whether the calculation is made on some other basis.").

When permanent partial disability payments are not timely commenced, interest is added to the weekly payments pursuant to Iowa Code sections 85.30 and 535.3. See also Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 262 (Iowa 1996). Wausau's failure was in delaying the start of the payments after it was notified of Davidson's maximum medical improvement, and again in delaying payment after receiving an impairment rating from Dr. Miller. The...